InĀ [36]:
import os
from pathlib import Path
import re
import json
from collections import defaultdict, OrderedDict
import pprint
import docx
import PyPDF2
import pandas as pd
from bs4 import BeautifulSoup
import markdown
import nltk
from nltk.tokenize import word_tokenize, sent_tokenize
from nltk.corpus import stopwords, wordnet
from nltk.stem import WordNetLemmatizer
InĀ [37]:
# Ensure NLTK data required is available (run once)
nltk.download('punkt', quiet=True)
nltk.download('wordnet', quiet=True)
nltk.download('omw-1.4', quiet=True)
nltk.download('stopwords', quiet=True)
Out[37]:
True
Preprocesses a collection of at least 10 legal documents . Apply tokenization, stop word removal, and stemming or lemmatizationĀ¶
InĀ [38]:
lemmatizer = WordNetLemmatizer()
# Helpful pretty-printer
pp = pprint.PrettyPrinter(width=140)
def print_doc_summary(doc, tokens_preview=30):
"""Print a compact, readable summary of a preprocessed document dict."""
print('\n' + '='*100)
print(f"Document: {doc.get('doc_id')}")
print('-'*100)
print(f"Path: {doc.get('path')}")
print(f"Tokens: {len(doc.get('tokens', []))}, Sentences: {len(doc.get('sentences', []))}, Paragraphs: {len(doc.get('paragraphs', []))}")
print()
tokens = doc.get('tokens', [])
lemmas = doc.get('lemmas', [])
preview = ' '.join(tokens[:tokens_preview])
preview_lemmas = ' '.join(lemmas[:tokens_preview])
print('Tokens preview:')
print(preview)
print()
print('Lemmas preview:')
print(preview_lemmas)
print('='*100 + '\n')
InĀ [39]:
# Part 2: File reading utilities
def read_txt(path):
return Path(path).read_text(encoding='utf8', errors='ignore')
def read_docx(path):
doc = docx.Document(path)
return "\n".join(p.text for p in doc.paragraphs)
def read_pdf(path):
text_parts = []
with open(path, 'rb') as f:
reader = PyPDF2.PdfReader(f)
for page in reader.pages:
txt = page.extract_text()
if txt:
text_parts.append(txt)
return "\n".join(text_parts)
def read_csv(path):
try:
df = pd.read_csv(path, encoding='utf8', dtype=str, keep_default_na=False)
# concat rows and columns to a single text
rows = []
for _, row in df.iterrows():
rows.append(" ".join([str(x) for x in row.values if str(x).strip()]))
return "\n".join(rows)
except Exception:
return read_txt(path)
READERS = {
".txt": read_txt,
".md": read_txt,
".docx": read_docx,
".pdf": read_pdf,
".csv": read_csv
}
def read_file_auto(path):
p = Path(path)
reader = READERS.get(p.suffix.lower(), read_txt)
return reader(path)
InĀ [40]:
# Part 3: Preprocessing helpers and pipeline
# Use NLTK English stopwords (you can extend with legal stopwords if desired)
STOPWORDS = set(stopwords.words('english'))
TOKEN_RE = re.compile(r"\w+") # word tokens (alphanumeric)
InĀ [41]:
def tokenize_text(text):
# returns list of tokens lowercased
return TOKEN_RE.findall(text.lower())
def lemmatize_list(tokens):
# POS-agnostic lemmatization using WordNet lemmatizer (fast and portable)
return [lemmatizer.lemmatize(t) for t in tokens]
def preprocess_document(path, doc_id=None):
"""
Reads file, splits into paragraphs, sentences, full tokens, and builds position metadata:
returns dict with keys: doc_id, text, paragraphs, sentences, tokens, lemmas, pos_to_sent, pos_to_para
"""
text = read_file_auto(path)
paragraphs = [p.strip() for p in re.split(r'\n\s*\n', text) if p.strip()]
if not paragraphs:
paragraphs = [text.strip()]
# Build sentences list while maintaining paragraph boundaries:
sentences = []
sent_to_para = [] # map sentence index -> paragraph index
for p_idx, para in enumerate(paragraphs):
sents = sent_tokenize(para)
for s in sents:
sentences.append(s)
sent_to_para.append(p_idx)
# Full tokens across entire document (we'll use these positions)
tokens = tokenize_text(text) # original normalized tokens (lowercased)
lemmas = lemmatize_list(tokens) # lemmatized tokens aligned with tokens
# Map token positions to sentence index and paragraph index.
# We'll compute by scanning sentences and matching tokens in order to maintain robust mapping.
pos_to_sent = {} # token_position -> sentence_index
pos_to_para = {} # token_position -> paragraph_index
token_index = 0
for s_idx, s in enumerate(sentences):
s_tokens = tokenize_text(s)
for _ in s_tokens:
# assign mapping for this token position
pos_to_sent[token_index] = s_idx
pos_to_para[token_index] = sent_to_para[s_idx]
token_index += 1
# Note: token counts from tokenize_text(text) and sum of sentence tokens should match in normal text.
# If mismatch, we still keep mappings for positions we could assign.
if doc_id is None:
doc_id = Path(path).name
return {
"doc_id": doc_id,
"path": str(path),
"text": text,
"paragraphs": paragraphs,
"sentences": sentences,
"tokens": tokens,
"lemmas": lemmas,
"pos_to_sent": pos_to_sent,
"pos_to_para": pos_to_para
}
Construct a Positional inverted index that maps each term to document IDs and positional occurrences.(2)Ā¶
InĀ [42]:
# Part 4: Build positional inverted index
def build_positional_inverted_index(docs_preprocessed):
"""
docs_preprocessed: list of dicts returned by preprocess_document
Returns: inverted_index: dict { term: { doc_id: [positions] } }
"""
index = defaultdict(lambda: defaultdict(list))
for doc in docs_preprocessed:
doc_id = doc['doc_id']
lemmas = doc['lemmas']
for pos, lemma in enumerate(lemmas):
if lemma in STOPWORDS:
continue
index[lemma][doc_id].append(pos)
# Convert postings lists to sorted lists
for term in list(index.keys()):
for doc_id in index[term]:
index[term][doc_id] = sorted(index[term][doc_id])
return index
def sorted_inverted_index_repr(index):
# produce OrderedDict sorted by term
return OrderedDict(sorted(((term, dict(sorted(postings.items()))) for term, postings in index.items()), key=lambda x: x[0]))
Support Proximity-Based Search Operators - Implement query functionality that supports the following proximity search operators:Ā¶
term1 /n term2: term1 and term2 must appear within n words of each other.Ā¶
term1 /s term2: term1 and term2 must appear in the same sentence.Ā¶
term1 /p term2: term1 and term2 must appear in the same paragraph.Ā¶
Display Matching document IDs and Matching snippet text where the terms occur together.Ā¶
InĀ [43]:
# Part 5: Proximity and snippet utilities
def snippet_from_sent_idx(doc, sent_idx):
# safe guard
if 0 <= sent_idx < len(doc['sentences']):
return doc['sentences'][sent_idx].strip()
return ""
def snippet_from_para_idx(doc, para_idx):
if 0 <= para_idx < len(doc['paragraphs']):
return doc['paragraphs'][para_idx].strip()
return ""
def build_highlighted_snippet(doc, pos_pair, window_tokens=8, bg_color='#fff59d'):
"""
Build an HTML snippet around pos_pair (a,b). Returns (highlighted_html, sentence_index, paragraph_index, start_token_pos)
"""
tokens = doc['tokens']
a, b = pos_pair
# ensure a <= b
a0, b0 = min(a,b), max(a,b)
start = max(0, a0 - window_tokens)
end = min(len(tokens), b0 + window_tokens + 1)
snippet_tokens = tokens[start:end]
# compute local indices for highlight
local_a = a0 - start
local_b = local_a + (b0 - a0) + 1
# escape HTML chars
def esc(s):
return s.replace('&', '&').replace('<', '<').replace('>', '>')
pre = ' '.join(esc(t) for t in snippet_tokens[:local_a])
phrase_text = ' '.join(esc(t) for t in snippet_tokens[local_a:local_b])
post = ' '.join(esc(t) for t in snippet_tokens[local_b:])
highlighted = f"{pre} <span style=\"background-color:{bg_color};color:#000;padding:2px 4px;border-radius:3px\">{phrase_text}</span> {post}".strip()
s_idx = doc.get('pos_to_sent', {}).get(a0)
p_idx = doc.get('pos_to_para', {}).get(a0)
return highlighted, s_idx, p_idx, a0
def proximity_within_n(index, term1, term2, n):
"""
term1 /n term2: return list of (doc_id, pairs_of_positions, snippet)
Uses two-pointer algorithm for positions lists.
"""
t1 = term1.lower()
t2 = term2.lower()
results = []
postings1 = index.get(t1, {})
postings2 = index.get(t2, {})
common_docs = set(postings1.keys()) & set(postings2.keys())
for doc_id in common_docs:
p1 = postings1[doc_id]
p2 = postings2[doc_id]
i, j = 0, 0
pairs = []
# two-pointer to find all position pairs whose distance <= n
while i < len(p1) and j < len(p2):
a, b = p1[i], p2[j]
if a == b:
# same position (rare), skip
if a < b:
i += 1
else:
j += 1
continue
if abs(a - b) <= n:
pairs.append((a, b))
# advance the smaller pointer to seek other combos
if a < b:
i += 1
else:
j += 1
else:
if a < b:
i += 1
else:
j += 1
if pairs:
results.append((doc_id, pairs))
return results
def proximity_same_sentence(index, docs_by_id, term1, term2):
"""
term1 /s term2: check if both lemmas exist in the same sentence.
We'll use pos_to_sent mapping to determine sentence membership.
Returns list of (doc_id, sent_index, snippet)
"""
t1 = term1.lower()
t2 = term2.lower()
results = []
postings1 = index.get(t1, {})
postings2 = index.get(t2, {})
common_docs = set(postings1.keys()) & set(postings2.keys())
for doc_id in common_docs:
doc = docs_by_id[doc_id]
# build set of sentence indices containing term1 and term2
sent_idxs_t1 = { doc['pos_to_sent'].get(pos) for pos in postings1[doc_id] }
sent_idxs_t2 = { doc['pos_to_sent'].get(pos) for pos in postings2[doc_id] }
# intersection ignoring None
intersect = {s for s in sent_idxs_t1 if s is not None} & {s for s in sent_idxs_t2 if s is not None}
for sidx in sorted(intersect):
# optional: find representative positions within this sentence for highlighting
# find a pos for term1 and term2 within sentence sidx
pos1 = next((pos for pos in postings1[doc_id] if doc['pos_to_sent'].get(pos)==sidx), None)
pos2 = next((pos for pos in postings2[doc_id] if doc['pos_to_sent'].get(pos)==sidx), None)
# choose a representative pair if both found
if pos1 is not None and pos2 is not None:
# pick smaller-first ordering
pair = (pos1, pos2)
results.append((doc_id, sidx, pair))
else:
# fallback: return sidx without positions
results.append((doc_id, sidx, None))
return results
def proximity_same_paragraph(index, docs_by_id, term1, term2):
"""
term1 /p term2: check if both lemmas exist in the same paragraph.
"""
t1 = term1.lower()
t2 = term2.lower()
results = []
postings1 = index.get(t1, {})
postings2 = index.get(t2, {})
common_docs = set(postings1.keys()) & set(postings2.keys())
for doc_id in common_docs:
doc = docs_by_id[doc_id]
para_idxs_t1 = { doc['pos_to_para'].get(pos) for pos in postings1[doc_id] }
para_idxs_t2 = { doc['pos_to_para'].get(pos) for pos in postings2[doc_id] }
intersect = {p for p in para_idxs_t1 if p is not None} & {p for p in para_idxs_t2 if p is not None}
for pidx in sorted(intersect):
pos1 = next((pos for pos in postings1[doc_id] if doc['pos_to_para'].get(pos)==pidx), None)
pos2 = next((pos for pos in postings2[doc_id] if doc['pos_to_para'].get(pos)==pidx), None)
if pos1 is not None and pos2 is not None:
results.append((doc_id, pidx, (pos1, pos2)))
else:
results.append((doc_id, pidx, None))
return results
def extract_snippet_from_positions(doc, pos_pair, window_tokens=8):
# returns a short snippet (tokens) around the positions (plain text)
tokens = doc['tokens']
a, b = pos_pair
start = max(0, min(a, b) - window_tokens)
end = min(len(tokens), max(a, b) + window_tokens + 1)
return " ".join(tokens[start:end])
InĀ [44]:
# Part 6: Phrase query using positional index
def phrase_query(index, docs_by_id, phrase, window_tokens=8):
"""
phrase: string like "right to counsel"
Steps:
- tokenize+lemmatize phrase terms (using same pipeline)
- for candidate docs that contain first term, scan positions to see if consecutive positions match phrase lemmas
Returns: list of (doc_id, start_pos, sentence_index, paragraph_index, highlighted_snippet_html)
"""
phrase_tokens = [t for t in TOKEN_RE.findall(phrase.lower()) if t not in STOPWORDS]
if not phrase_tokens:
return []
phrase_lemmas = [lemmatizer.lemmatize(t) for t in phrase_tokens]
first = phrase_lemmas[0]
results = []
postings_first = index.get(first, {})
L = len(phrase_lemmas)
for doc_id, positions in postings_first.items():
doc = docs_by_id[doc_id]
# We rely on doc['lemmas'] aligned to token positions.
lemmas = doc['lemmas']
tokens = doc['tokens']
for p in positions:
# check bounds
if p + L > len(lemmas):
continue
ok = True
for offset in range(L):
if lemmas[p + offset] != phrase_lemmas[offset]:
ok = False
break
if ok:
# found exact consecutive phrase starting at p
s_idx = doc['pos_to_sent'].get(p)
para_idx = doc['pos_to_para'].get(p)
# build a token-window snippet and highlight the phrase tokens
start = max(0, p - window_tokens)
end = min(len(tokens), p + L + window_tokens)
snippet_tokens = tokens[start:end]
a = p - start
b = a + L
# escape HTML special chars
def esc(s):
return s.replace('&', '&').replace('<', '<').replace('>', '>')
pre = ' '.join(esc(t) for t in snippet_tokens[:a])
phrase_text = ' '.join(esc(t) for t in snippet_tokens[a:b])
post = ' '.join(esc(t) for t in snippet_tokens[b:])
highlighted = f"{pre} <span style=\"background-color:#fff59d;color:#000; padding:2px 4px; border-radius:3px\">{phrase_text}</span> {post}".strip()
results.append((doc_id, p, s_idx, para_idx, highlighted))
break # one match per doc is sufficient
return results
InĀ [Ā ]:
DATA_DIR = Path("./data") # ensure your 10 files are here
# 1. Collect files
files = sorted([p for p in DATA_DIR.iterdir() if p.is_file()])
print('\nFiles found: {}\n'.format(len(files)))
for i, f in enumerate(files, 1):
try:
size = f.stat().st_size
except Exception:
size = 0
print(f"{i:2d}. {f.name} ({f.suffix}) size={size} bytes")
files_list = files # keep reference for later cells
Files found: 9 1. BenchOpinion.md (.md) size=5149 bytes 2. indian_supreme_court_judgments.csv (.csv) size=32277049 bytes 3. Martin_v_Franklin_Capital_Corp.md (.md) size=5224 bytes 4. Sanjay Rajpoot vs Ram Singh on 11 F.txt (.txt) size=7429 bytes 5. SanjayDuttvsTheStateOfHaryana.txt (.txt) size=21011 bytes 6. Vinay_Aggarwal_vs_State_Of_Haryana_on_2_April_2025_1.docx (.docx) size=27539 bytes 7. Vipin_Kumar_vs_Jaydeep_on_21_January_2025_1.docx (.docx) size=33532 bytes 8. Vishal_Shah_vs_Monalisha_Gupta_on_20_February_2025_1.PDF (.PDF) size=289474 bytes 9. Vishnoo_Mittal_vs_M_S_Shakti_Trading_Company_on_17_March_2025_1.PDF (.PDF) size=257506 bytes
InĀ [46]:
# 2. Preprocess all files
docs = []
docs_by_id = {}
for i, p in enumerate(files, 1):
print(f"Preprocessing {i}/{len(files)}: {p.name}")
doc = preprocess_document(p, doc_id=p.name)
docs.append(doc)
docs_by_id[doc['doc_id']] = doc
print('\nPreprocessing finished for all files.')
if docs:
print_doc_summary(docs[0])
Preprocessing 1/9: BenchOpinion.md Preprocessing 2/9: indian_supreme_court_judgments.csv Preprocessing 2/9: indian_supreme_court_judgments.csv Preprocessing 3/9: Martin_v_Franklin_Capital_Corp.md Preprocessing 4/9: Sanjay Rajpoot vs Ram Singh on 11 F.txt Preprocessing 5/9: SanjayDuttvsTheStateOfHaryana.txt Preprocessing 6/9: Vinay_Aggarwal_vs_State_Of_Haryana_on_2_April_2025_1.docx Preprocessing 7/9: Vipin_Kumar_vs_Jaydeep_on_21_January_2025_1.docx Preprocessing 8/9: Vishal_Shah_vs_Monalisha_Gupta_on_20_February_2025_1.PDF Preprocessing 3/9: Martin_v_Franklin_Capital_Corp.md Preprocessing 4/9: Sanjay Rajpoot vs Ram Singh on 11 F.txt Preprocessing 5/9: SanjayDuttvsTheStateOfHaryana.txt Preprocessing 6/9: Vinay_Aggarwal_vs_State_Of_Haryana_on_2_April_2025_1.docx Preprocessing 7/9: Vipin_Kumar_vs_Jaydeep_on_21_January_2025_1.docx Preprocessing 8/9: Vishal_Shah_vs_Monalisha_Gupta_on_20_February_2025_1.PDF Preprocessing 9/9: Vishnoo_Mittal_vs_M_S_Shakti_Trading_Company_on_17_March_2025_1.PDF Preprocessing finished for all files. ==================================================================================================== Document: BenchOpinion.md ---------------------------------------------------------------------------------------------------- Path: data\BenchOpinion.md Tokens: 817, Sentences: 34, Paragraphs: 4 Tokens preview: bench opinion october term 2005 syllabus note where it is feasible a syllabus headnote will be released content preserved exactly as provided bench opinion october term 2005 1 syllabus note Lemmas preview: bench opinion october term 2005 syllabus note where it is feasible a syllabus headnote will be released content preserved exactly a provided bench opinion october term 2005 1 syllabus note ==================================================================================================== Preprocessing 9/9: Vishnoo_Mittal_vs_M_S_Shakti_Trading_Company_on_17_March_2025_1.PDF Preprocessing finished for all files. ==================================================================================================== Document: BenchOpinion.md ---------------------------------------------------------------------------------------------------- Path: data\BenchOpinion.md Tokens: 817, Sentences: 34, Paragraphs: 4 Tokens preview: bench opinion october term 2005 syllabus note where it is feasible a syllabus headnote will be released content preserved exactly as provided bench opinion october term 2005 1 syllabus note Lemmas preview: bench opinion october term 2005 syllabus note where it is feasible a syllabus headnote will be released content preserved exactly a provided bench opinion october term 2005 1 syllabus note ====================================================================================================
InĀ [47]:
print('\nPreprocessing complete. Example document keys and sizes:')
for doc in docs:
print(f" - {doc['doc_id']}: tokens={len(doc['tokens'])}, sentences={len(doc['sentences'])}, paragraphs={len(doc['paragraphs'])}")
print('\nShow detailed summary for first 2 documents:')
for doc in docs[:2]:
print_doc_summary(doc, tokens_preview=50)
Preprocessing complete. Example document keys and sizes: - BenchOpinion.md: tokens=817, sentences=34, paragraphs=4 - indian_supreme_court_judgments.csv: tokens=5191404, sentences=164023, paragraphs=1 - Martin_v_Franklin_Capital_Corp.md: tokens=870, sentences=55, paragraphs=26 - Sanjay Rajpoot vs Ram Singh on 11 F.txt: tokens=1287, sentences=57, paragraphs=1 - SanjayDuttvsTheStateOfHaryana.txt: tokens=3525, sentences=129, paragraphs=1 - Vinay_Aggarwal_vs_State_Of_Haryana_on_2_April_2025_1.docx: tokens=1966, sentences=66, paragraphs=1 - Vipin_Kumar_vs_Jaydeep_on_21_January_2025_1.docx: tokens=4754, sentences=209, paragraphs=1 - Vishal_Shah_vs_Monalisha_Gupta_on_20_February_2025_1.PDF: tokens=6866, sentences=424, paragraphs=1 - Vishnoo_Mittal_vs_M_S_Shakti_Trading_Company_on_17_March_2025_1.PDF: tokens=2505, sentences=77, paragraphs=1 Show detailed summary for first 2 documents: ==================================================================================================== Document: BenchOpinion.md ---------------------------------------------------------------------------------------------------- Path: data\BenchOpinion.md Tokens: 817, Sentences: 34, Paragraphs: 4 Tokens preview: bench opinion october term 2005 syllabus note where it is feasible a syllabus headnote will be released content preserved exactly as provided bench opinion october term 2005 1 syllabus note where it is feasible a syllabus headnote will be released as is being done in connection with this case at Lemmas preview: bench opinion october term 2005 syllabus note where it is feasible a syllabus headnote will be released content preserved exactly a provided bench opinion october term 2005 1 syllabus note where it is feasible a syllabus headnote will be released a is being done in connection with this case at ==================================================================================================== ==================================================================================================== Document: indian_supreme_court_judgments.csv ---------------------------------------------------------------------------------------------------- Path: data\indian_supreme_court_judgments.csv Tokens: 5191404, Sentences: 164023, Paragraphs: 1 Tokens preview: 5 2021_ma 000083 2021 the government of india the 2020 01 09 background in which the above applications have been filed the definition of gross revenue as defined in clause 19 1 of the licence agreements between the government of india and the telecom service providers for short the tsps Lemmas preview: 5 2021_ma 000083 2021 the government of india the 2020 01 09 background in which the above application have been filed the definition of gross revenue a defined in clause 19 1 of the licence agreement between the government of india and the telecom service provider for short the tsps ====================================================================================================
InĀ [48]:
# 3. Build positional inverted index
index = build_positional_inverted_index(docs)
# 4. Display sorted inverted index (terms in alphabetical order)
sorted_index = sorted_inverted_index_repr(index)
print('\n--- Inverted Index (first 60 terms with document frequency and sample postings) ---')
count = 0
for term, postings in sorted_index.items():
df = len(postings)
# show a small sample of postings (up to 3 docs)
sample_postings = {doc_id: postings[doc_id] for doc_id in list(postings)[:3]}
print('\n' + '-'*80)
print(f"Term: '{term}' (df={df})")
print('Sample postings:')
pp.pprint(sample_postings)
count += 1
if count >= 60:
break
print('\n' + '-'*80)
print(f"... (vocab size = {len(sorted_index)})\n")
# 5. Example Proximity queries
print('\n=== Example Proximity Queries ===')
--- Inverted Index (first 60 terms with document frequency and sample postings) ---
--------------------------------------------------------------------------------
Term: '0' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [139316,
148309,
329832,
329951,
331472,
331591,
355617,
355619,
355621,
355622,
355623,
370317,
370319,
370321,
370322,
370323,
385027,
385029,
385031,
385032,
385033,
399727,
399729,
399731,
399732,
399733,
550115,
550590,
555551,
556026,
560997,
561472,
566433,
566908,
651509,
659494,
685502,
685534,
685768,
685824,
696128,
696711,
701736,
701768,
702002,
702058,
712362,
712945,
717980,
718012,
718246,
718302,
728606,
729189,
734214,
734246,
734480,
734536,
744840,
745423,
767572,
774283,
845499,
847643,
853864,
862396,
866203,
866241,
866267,
866354,
866370,
866379,
866393,
866501,
866574,
866576,
866581,
866583,
866601,
866603,
866611,
866613,
866625,
866627,
866703,
867827,
867865,
867891,
867978,
867994,
868003,
868017,
868125,
868198,
868200,
868205,
868207,
868225,
868227,
868235,
868237,
868249,
868251,
868327,
893159,
896127,
1074725,
1080480,
1203812,
1203823,
1203978,
1205463,
1206127,
1206207,
1206670,
1207309,
1208348,
1208419,
1209794,
1210073,
1210992,
1212470,
1213273,
1213393,
1213807,
1214508,
1218254,
1218265,
1218420,
1219905,
1220569,
1220649,
1221112,
1221751,
1222790,
1222861,
1224236,
1224515,
1225434,
1226912,
1227715,
1227835,
1228249,
1228950,
1232706,
1232717,
1232872,
1234357,
1235021,
1235101,
1235564,
1236203,
1237242,
1237313,
1238688,
1238967,
1239886,
1241364,
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1761753,
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--------------------------------------------------------------------------------
Term: '00' (df=4)
Sample postings:
{'Sanjay Rajpoot vs Ram Singh on 11 F.txt': [387, 592, 994, 999, 1068, 1077, 1101, 1123],
'Vinay_Aggarwal_vs_State_Of_Haryana_on_2_April_2025_1.docx': [218],
'Vishal_Shah_vs_Monalisha_Gupta_on_20_February_2025_1.PDF': [6665]}
--------------------------------------------------------------------------------
Term: '000' (df=4)
Sample postings:
{'Sanjay Rajpoot vs Ram Singh on 11 F.txt': [388, 400, 433, 489, 503, 556, 593, 964, 978, 1057, 1069, 1078, 1102, 1124, 1157],
'Vinay_Aggarwal_vs_State_Of_Haryana_on_2_April_2025_1.docx': [219],
'Vishal_Shah_vs_Monalisha_Gupta_on_20_February_2025_1.PDF': [5228, 6666]}
--------------------------------------------------------------------------------
Term: '000001' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2415664, 2415665]}
--------------------------------------------------------------------------------
Term: '000002' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2339053]}
--------------------------------------------------------------------------------
Term: '000003' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2620723, 2638979, 2655356]}
--------------------------------------------------------------------------------
Term: '0000037' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [4813298, 4815922]}
--------------------------------------------------------------------------------
Term: '000006' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1988256, 1988257, 2919440]}
--------------------------------------------------------------------------------
Term: '000012' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2146355, 2146356]}
--------------------------------------------------------------------------------
Term: '000013' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2496448, 2496449]}
--------------------------------------------------------------------------------
Term: '000017' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [255055, 3554088]}
--------------------------------------------------------------------------------
Term: '000019' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [4556006]}
--------------------------------------------------------------------------------
Term: '000020' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [4556007]}
--------------------------------------------------------------------------------
Term: '000022' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1672795]}
--------------------------------------------------------------------------------
Term: '000023' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1672796]}
--------------------------------------------------------------------------------
Term: '000024' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2240772, 2240773]}
--------------------------------------------------------------------------------
Term: '000025' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [776123]}
--------------------------------------------------------------------------------
Term: '000026' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [226831]}
--------------------------------------------------------------------------------
Term: '000031' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [843956, 843957]}
--------------------------------------------------------------------------------
Term: '000039' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [4377080, 4377081]}
--------------------------------------------------------------------------------
Term: '000040' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [412078]}
--------------------------------------------------------------------------------
Term: '000049' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1203698, 1203699, 1232592, 1232593]}
--------------------------------------------------------------------------------
Term: '000054' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [244311]}
--------------------------------------------------------------------------------
Term: '000060' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [204252]}
--------------------------------------------------------------------------------
Term: '000062' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [124577]}
--------------------------------------------------------------------------------
Term: '000073' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [104115]}
--------------------------------------------------------------------------------
Term: '000074' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [104116]}
--------------------------------------------------------------------------------
Term: '000078' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [249829]}
--------------------------------------------------------------------------------
Term: '000081' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [4835488, 4835489]}
--------------------------------------------------------------------------------
Term: '000083' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2]}
--------------------------------------------------------------------------------
Term: '000092' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [3446717, 3446718]}
--------------------------------------------------------------------------------
Term: '000094' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [3778610, 3778611]}
--------------------------------------------------------------------------------
Term: '0001' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2080195, 2082572]}
--------------------------------------------------------------------------------
Term: '000102' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [5183816, 5183817]}
--------------------------------------------------------------------------------
Term: '000104' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [3215339, 3215340]}
--------------------------------------------------------------------------------
Term: '000113' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [504387]}
--------------------------------------------------------------------------------
Term: '000114' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1290208, 1290209]}
--------------------------------------------------------------------------------
Term: '000116' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [660931]}
--------------------------------------------------------------------------------
Term: '000132' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1893335, 1893336]}
--------------------------------------------------------------------------------
Term: '000135' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [942569, 942570]}
--------------------------------------------------------------------------------
Term: '000138' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1556179, 1556180, 1560664, 1560665]}
--------------------------------------------------------------------------------
Term: '000142' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [3569655, 3569656]}
--------------------------------------------------------------------------------
Term: '000150' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [839357]}
--------------------------------------------------------------------------------
Term: '000154' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [3281441]}
--------------------------------------------------------------------------------
Term: '000167' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [13315, 13316]}
--------------------------------------------------------------------------------
Term: '000175' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [3517151, 3517152]}
--------------------------------------------------------------------------------
Term: '000186' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1398221, 1398222]}
--------------------------------------------------------------------------------
Term: '000195' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [607571]}
--------------------------------------------------------------------------------
Term: '0002' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2080177, 2082554]}
--------------------------------------------------------------------------------
Term: '000202' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [848285, 848286, 865374, 865375, 3389292, 3389293, 3418004, 3418005]}
--------------------------------------------------------------------------------
Term: '000218' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [91815]}
--------------------------------------------------------------------------------
Term: '000229' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [1645960, 1645961]}
--------------------------------------------------------------------------------
Term: '000231' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2259209]}
--------------------------------------------------------------------------------
Term: '000232' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [890874, 2259210]}
--------------------------------------------------------------------------------
Term: '000255' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [212980]}
--------------------------------------------------------------------------------
Term: '000256' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [212981]}
--------------------------------------------------------------------------------
Term: '000257' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [95685, 95686]}
--------------------------------------------------------------------------------
Term: '000258' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [911745, 911746]}
--------------------------------------------------------------------------------
Term: '000261' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [2255462, 2255463]}
--------------------------------------------------------------------------------
Term: '000262' (df=1)
Sample postings:
{'indian_supreme_court_judgments.csv': [4905173]}
--------------------------------------------------------------------------------
... (vocab size = 45947)
=== Example Proximity Queries ===
InĀ [49]:
# Example: counsel /10 ineffective
q1 = ("counsel", "/10", "ineffective")
if re.match(r"/\d+", q1[1]):
n = int(q1[1][1:])
res = proximity_within_n(index, q1[0].lower(), q1[2].lower(), n)
print('\n' + '='*100)
print(f"Query: {q1[0]} {q1[1]} {q1[2]} -> Matches: {len(res)}")
print('-'*100)
if not res:
print('No matches found for this proximity query.')
for doc_id, pairs in res:
doc = docs_by_id[doc_id]
# show up to 3 pairs per doc
for pair in pairs[:3]:
highlighted, sidx, pidx, token_pos = build_highlighted_snippet(doc, pair)
print(f"Doc: {doc_id} | sentence_index={sidx} | paragraph_index={pidx} | token_start_pos={token_pos} | pair={pair}")
display(HTML(f"<div style='font-family: monospace; background:#1f1f1f; color:#e6e6e6; padding:10px; border-radius:6px; margin:6px 0;'>{highlighted}</div>"))
print()
print('='*100)
==================================================================================================== Query: counsel /10 ineffective -> Matches: 1 ---------------------------------------------------------------------------------------------------- Doc: indian_supreme_court_judgments.csv | sentence_index=67482 | paragraph_index=0 | token_start_pos=2161469 | pair=(2161476, 2161469)
thereby rendering the hearing itself as meaningless and ineffective 34 mr sanjay hegde learned senior counsel appearing for the petitioners further submitted that the
====================================================================================================
InĀ [50]:
# Example: due /s process
res_s = proximity_same_sentence(index, docs_by_id, "due", "process")
print('\n' + '='*100)
print(f"Query: due /s process -> Matches: {len(res_s)}")
print('-'*100)
if not res_s:
print('No sentence-level matches found.')
for doc_id, sidx, pair in res_s:
doc = docs_by_id[doc_id]
if pair is not None:
highlighted, s2, p2, token_pos = build_highlighted_snippet(doc, pair)
# s2 should equal sidx; p2 is paragraph index
print(f"Doc: {doc_id} | sentence_index={sidx} | paragraph_index={p2} | token_start_pos={token_pos}")
display(HTML(f"<div style='font-family: monospace; background:#1f1f1f; color:#e6e6e6; padding:10px; border-radius:6px; margin:6px 0;'>{highlighted}</div>"))
else:
# fallback: show sentence text and indices
sent_text = snippet_from_sent_idx(doc, sidx)
pidx = doc.get('pos_to_para', {}).get(next(iter(index.get('due',{}).get(doc_id,[])), None))
print(f"Doc: {doc_id} | sentence_index={sidx} | paragraph_index={pidx}")
print(f"Sentence: {sent_text}\n")
print()
print('='*100)
==================================================================================================== Query: due /s process -> Matches: 59 ---------------------------------------------------------------------------------------------------- Doc: indian_supreme_court_judgments.csv | sentence_index=1812 | paragraph_index=0 | token_start_pos=44515
the learned magistrate to take cognizance after following due procedure issue process summons in respect of the violations of the
Doc: indian_supreme_court_judgments.csv | sentence_index=2938 | paragraph_index=0 | token_start_pos=81251
steel this entire acquisition was undertaken following the due governance process under the supervision of the board of directors
Doc: indian_supreme_court_judgments.csv | sentence_index=3164 | paragraph_index=0 | token_start_pos=89897
steel this entire acquisition was undertaken following the due governance process under the supervision of the board of directors
Doc: indian_supreme_court_judgments.csv | sentence_index=15274 | paragraph_index=0 | token_start_pos=430321
judges of the high court iii the debt due as defined under the concession agreements would be determined under the auspices of the cag who would appoint a team of auditors for the financial audit of the debt due and for examining the scope of 48 part d the audit of the debt due audited by the hsvp with the assistance of the auditors appointed by the parties to the lis iv the process of audit would be completed within 30 days
Doc: indian_supreme_court_judgments.csv | sentence_index=15276 | paragraph_index=0 | token_start_pos=430537
of the consent order is the time bound process which was envisaged with the audit being completed within 30 days and 80 per cent of the debt due being deposited within 30 days after the receipt
Doc: indian_supreme_court_judgments.csv | sentence_index=15333 | paragraph_index=0 | token_start_pos=432760
for conducting a financial audit of the debt due and in that process of also examine the scope of the audit
Doc: indian_supreme_court_judgments.csv | sentence_index=15497 | paragraph_index=0 | token_start_pos=438547
october 16 2019 during which a the debt due as per financing documents in terms of the concession agreement may be determined by an auditor appointed by the hon ble court and b the process for transfer of the metro links may be
Doc: indian_supreme_court_judgments.csv | sentence_index=23991 | paragraph_index=0 | token_start_pos=776718
were passed by the family court without following due process of law and in breach of principles of
Doc: indian_supreme_court_judgments.csv | sentence_index=24408 | paragraph_index=0 | token_start_pos=786693
were passed by the family court without following due process of law and in breach of principles of
Doc: indian_supreme_court_judgments.csv | sentence_index=27822 | paragraph_index=0 | token_start_pos=881486
could not have been terminated without following the due process according to the appellant s counsel even when
Doc: indian_supreme_court_judgments.csv | sentence_index=27914 | paragraph_index=0 | token_start_pos=883341
could not have been terminated without following the due process according to the appellant s counsel even when
Doc: indian_supreme_court_judgments.csv | sentence_index=38616 | paragraph_index=0 | token_start_pos=1277096
every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process whether the expectation of the claimant is reasonable
Doc: indian_supreme_court_judgments.csv | sentence_index=38779 | paragraph_index=0 | token_start_pos=1280440
every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process whether the expectation of the claimant is reasonable
Doc: indian_supreme_court_judgments.csv | sentence_index=42732 | paragraph_index=0 | token_start_pos=1403075
testimony if the judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the witness as a whole with due caution and care accept in the light of
Doc: indian_supreme_court_judgments.csv | sentence_index=43234 | paragraph_index=0 | token_start_pos=1411798
testimony if the judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the witness as a whole with due caution and care accept in the light of
Doc: indian_supreme_court_judgments.csv | sentence_index=48268 | paragraph_index=0 | token_start_pos=1624649
the scheme of the ibc the insolvency resolution process begins when a default takes place in the sense that a debt becomes due and is not paid some of the relevant
Doc: indian_supreme_court_judgments.csv | sentence_index=48541 | paragraph_index=0 | token_start_pos=1633133
the scheme of the ibc the insolvency resolution process begins when a default takes place in the sense that a debt becomes due and is not paid some of the relevant
Doc: indian_supreme_court_judgments.csv | sentence_index=51048 | paragraph_index=0 | token_start_pos=1705388
exercise resulted in findings demonstrating that the recruitment process stood entirely vitiated for the following reasons a admit cards were not provided to all the applicants as a result of which only 8 000 candidates appeared for the tier i examination from amongst 62 000 applications b the delay of five years between the date of the advertisement and the holding of the tier i examination coupled with the failure to ensure the due distribution of admit cards to all the applicants
Doc: indian_supreme_court_judgments.csv | sentence_index=51310 | paragraph_index=0 | token_start_pos=1713738
exercise resulted in findings demonstrating that the recruitment process stood entirely vitiated for the following reasons a admit cards were not provided to all the applicants as a result of which only 8 000 candidates appeared for the tier i examination from amongst 62 000 applications b the delay of five years between the date of the advertisement and the holding of the tier i examination coupled with the failure to ensure the due distribution of admit cards to all the applicants
Doc: indian_supreme_court_judgments.csv | sentence_index=57301 | paragraph_index=0 | token_start_pos=1914588
cannot be evicted from the secured asset without due process of law 7 on the other hand learned
Doc: indian_supreme_court_judgments.csv | sentence_index=57400 | paragraph_index=0 | token_start_pos=1916813
cannot be evicted from the secured asset without due process of law 7 on the other hand learned
Doc: indian_supreme_court_judgments.csv | sentence_index=57936 | paragraph_index=0 | token_start_pos=1939353
of imbibing the spirit of competition in a process such as that of the bidding process is lost in this meandering exercise and delays suffered due to pending litigation this causes great disadvantage to
Doc: indian_supreme_court_judgments.csv | sentence_index=58393 | paragraph_index=0 | token_start_pos=1947763
of imbibing the spirit of competition in a process such as that of the bidding process is lost in this meandering exercise and delays suffered due to pending litigation this causes great disadvantage to
Doc: indian_supreme_court_judgments.csv | sentence_index=67226 | paragraph_index=0 | token_start_pos=2155727
4 rule of law 124 135 5 democratic due process and 136 158 judicial review 6 need for
Doc: indian_supreme_court_judgments.csv | sentence_index=71178 | paragraph_index=0 | token_start_pos=2268033
place in the sense that a debt becomes due and is not paid the insolvency resolution process begins default is defined in section 3 12
Doc: indian_supreme_court_judgments.csv | sentence_index=71449 | paragraph_index=0 | token_start_pos=2275292
place in the sense that a debt becomes due and is not paid the insolvency resolution process begins default is defined in section 3 12
Doc: indian_supreme_court_judgments.csv | sentence_index=78085 | paragraph_index=0 | token_start_pos=2459521
gravity of the offence and the denial of due process a retrial was warranted 41 the appellate court
Doc: indian_supreme_court_judgments.csv | sentence_index=78093 | paragraph_index=0 | token_start_pos=2459726
trial 14 2012 9 scc 408 24 and due process the people who seek protection of law do
Doc: indian_supreme_court_judgments.csv | sentence_index=78349 | paragraph_index=0 | token_start_pos=2468333
gravity of the offence and the denial of due process a retrial was warranted 41 the appellate court
Doc: indian_supreme_court_judgments.csv | sentence_index=78357 | paragraph_index=0 | token_start_pos=2468538
trial 14 2012 9 scc 408 24 and due process the people who seek protection of law do
Doc: indian_supreme_court_judgments.csv | sentence_index=80851 | paragraph_index=0 | token_start_pos=2533748
the name of plaintiff from revenue records without due process of law the trial court considered the plaint
Doc: indian_supreme_court_judgments.csv | sentence_index=81038 | paragraph_index=0 | token_start_pos=2537506
the name of plaintiff from revenue records without due process of law the trial court considered the plaint
Doc: indian_supreme_court_judgments.csv | sentence_index=84942 | paragraph_index=0 | token_start_pos=2637574
15 our constitutional jurisprudence is akin to the due process dictum right to apply for bail is an
Doc: indian_supreme_court_judgments.csv | sentence_index=86858 | paragraph_index=0 | token_start_pos=2697071
statutory interpretation which 6 is even more difficult due to assimilation of individual intention of law makers contractual interpretation depends on the intentions expressed by the parties and dredging out the true meaning is an iterative process for the courts in any case the first
Doc: indian_supreme_court_judgments.csv | sentence_index=87013 | paragraph_index=0 | token_start_pos=2699965
statutory interpretation which 6 is even more difficult due to assimilation of individual intention of law makers contractual interpretation depends on the intentions expressed by the parties and dredging out the true meaning is an iterative process for the courts in any case the first
Doc: indian_supreme_court_judgments.csv | sentence_index=89032 | paragraph_index=0 | token_start_pos=2747910
for any activity that could not be completed due to such lockdown in relation to a corporate insolvency resolution process and thereby approval of the plan by the
Doc: indian_supreme_court_judgments.csv | sentence_index=89226 | paragraph_index=0 | token_start_pos=2754325
for any activity that could not be completed due to such lockdown in relation to a corporate insolvency resolution process and thereby approval of the plan by the
Doc: indian_supreme_court_judgments.csv | sentence_index=95233 | paragraph_index=0 | token_start_pos=2950331
form a reasonable basis for assessing the amount due and payable to the writ petitioner but such process could be undertaken only by the agreed forum
Doc: indian_supreme_court_judgments.csv | sentence_index=95499 | paragraph_index=0 | token_start_pos=2956551
form a reasonable basis for assessing the amount due and payable to the writ petitioner but such process could be undertaken only by the agreed forum
Doc: indian_supreme_court_judgments.csv | sentence_index=108619 | paragraph_index=0 | token_start_pos=3318279
noted that in the meantime since the tender process was held up due to various writ petitions pspcl passed a resolution
Doc: indian_supreme_court_judgments.csv | sentence_index=108939 | paragraph_index=0 | token_start_pos=3326126
noted that in the meantime since the tender process was held up due to various writ petitions pspcl passed a resolution
Doc: indian_supreme_court_judgments.csv | sentence_index=128440 | paragraph_index=0 | token_start_pos=4056002
the part of jil in payment of its dues led the lender bank idbi bank limited instituting a petition under section 7 of the code before the nclt for initiation of the corporate insolvency resolution process against jil the applicant bank alleged that jil
Doc: indian_supreme_court_judgments.csv | sentence_index=137315 | paragraph_index=0 | token_start_pos=4324546
hand the persons who were appointed by a due process of selection and were not parties to the
Doc: indian_supreme_court_judgments.csv | sentence_index=137492 | paragraph_index=0 | token_start_pos=4330316
hand the persons who were appointed by a due process of selection and were not parties to the
Doc: indian_supreme_court_judgments.csv | sentence_index=149279 | paragraph_index=0 | token_start_pos=4645312
second respondent this was done through a transparent process ii the cec incorrectly decided the application filed by the sixth and seventh respondents without properly understanding the second respondent s reasons for constructing the additional floors in the structure which was due to the strength and condition of the soil
Doc: indian_supreme_court_judgments.csv | sentence_index=149342 | paragraph_index=0 | token_start_pos=4647759
maintains the fundamental postulates of liberty equality and due process the rule of law postulates a law which
Doc: indian_supreme_court_judgments.csv | sentence_index=149552 | paragraph_index=0 | token_start_pos=4653762
second respondent this was done through a transparent process ii the cec incorrectly decided the application filed by the sixth and seventh respondents without properly understanding the second respondent s reasons for constructing the additional floors in the structure which was due to the strength and condition of the soil
Doc: indian_supreme_court_judgments.csv | sentence_index=149615 | paragraph_index=0 | token_start_pos=4656209
maintains the fundamental postulates of liberty equality and due process the rule of law postulates a law which
Doc: indian_supreme_court_judgments.csv | sentence_index=154995 | paragraph_index=0 | token_start_pos=4850189
on 18 2 2020 to cancel the recruitment process due to corruption involved the two expert reports given
Doc: indian_supreme_court_judgments.csv | sentence_index=162005 | paragraph_index=0 | token_start_pos=5042021
in particular to ensure the observance of the due process of law to do complete justice between the
Doc: indian_supreme_court_judgments.csv | sentence_index=162175 | paragraph_index=0 | token_start_pos=5046660
in particular to ensure the observance of the due process of law to do complete justice between the
Doc: indian_supreme_court_judgments.csv | sentence_index=163494 | paragraph_index=0 | token_start_pos=5176793
the essence and is virtually a part of due process 23 though the aforesaid judgment was rendered in
Doc: indian_supreme_court_judgments.csv | sentence_index=163730 | paragraph_index=0 | token_start_pos=5182540
the essence and is virtually a part of due process 23 though the aforesaid judgment was rendered in
Doc: indian_supreme_court_judgments.csv | sentence_index=163814 | paragraph_index=0 | token_start_pos=5184602
or justification ought to have examined whether the due process as contemplated under the pmla was complied so
Doc: indian_supreme_court_judgments.csv | sentence_index=163880 | paragraph_index=0 | token_start_pos=5186982
and as to whether while doing so the due process had been complied by adhering to the procedure
Doc: indian_supreme_court_judgments.csv | sentence_index=163886 | paragraph_index=0 | token_start_pos=5187206
would fall foul of the requirement of complying due process under law we have found fault with the
Doc: indian_supreme_court_judgments.csv | sentence_index=163932 | paragraph_index=0 | token_start_pos=5188387
or justification ought to have examined whether the due process as contemplated under the pmla was complied so
Doc: indian_supreme_court_judgments.csv | sentence_index=163998 | paragraph_index=0 | token_start_pos=5190767
and as to whether while doing so the due process had been complied by adhering to the procedure
Doc: indian_supreme_court_judgments.csv | sentence_index=164004 | paragraph_index=0 | token_start_pos=5190991
would fall foul of the requirement of complying due process under law we have found fault with the
====================================================================================================
InĀ [22]:
# Example: child /p visitation
from IPython.display import display, HTML
res_p = proximity_same_paragraph(index, docs_by_id, "child", "visitation")
print('\n' + '='*100)
print(f"Query: child /p visitation -> Matches: {len(res_p)}")
print('-'*100)
if not res_p:
print('No paragraph-level matches found.')
for doc_id, pidx, pair in res_p:
doc = docs_by_id[doc_id]
if pair is not None:
highlighted, s2, p2, token_pos = build_highlighted_snippet(doc, pair)
print(f"Doc: {doc_id} | paragraph_index={p2} | sentence_index={s2} | token_start_pos={token_pos} | pair={pair}")
display(HTML(f"<div style='font-family: monospace; background:#1f1f1f; color:#e6e6e6; padding:10px; border-radius:6px; margin:6px 0;'>{highlighted}</div>"))
else:
para_text = snippet_from_para_idx(doc, pidx)
print(f"Doc: {doc_id} | paragraph_index={pidx}")
print(f"Paragraph: {para_text[:400].strip()}\n")
print()
print('='*100)
==================================================================================================== Query: child /p visitation -> Matches: 1 ---------------------------------------------------------------------------------------------------- Doc: indian_supreme_court_judgments.csv | paragraph_index=0 | sentence_index=2370 | token_start_pos=62149 | pair=(62149, 779756) Doc: indian_supreme_court_judgments.csv | paragraph_index=0 | sentence_index=2370 | token_start_pos=62149 | pair=(62149, 779756)
section 2 1 d of the protection of children from sexual offences act 2012 this provision reads as follows 2 1 d child means any person below the age of eighteen years 48 44 the argument made before the court was that the age of 18 years did not only refer to physical age but could also refer to the mental age of the child as defined this court was therefore faced with the difficulty between interpreting the law as it stands and legislating the concurring judgment of nariman j put it thus 103 having read the erudite judgment of my learned brother and agreeing fully with him on the conclusion reached given the importance of the montesquiean separation of powers doctrine where the judiciary should not transgress from the field of judicial law making into the field of legislative law making i have felt it necessary to add a few words of my own 104 mr sanjay r hegde the learned amicus curiae has argued before us that the interpretation of section 2 1 d of the protection of children from sexual offences act 2012 cannot include mental age as such an interpretation would be beyond the lakshman rekha that is it is no part of this court s function to add to or amend the law as it stands this court s function is limited to interpreting the law as it stands and this being the case he has exhorted us not to go against the plain literal meaning of the statute 105 since mr hegde s argument raises the constitutional spectre of separation of powers let it first be admitted that under our constitutional scheme judges only declare the law it is for the legislatures to make the law this much at least is clear on a conjoint reading of articles 141 and 245 of the constitution of india which are set out hereinbelow 141 law declared by supreme court to be binding on all courts the law declared by the 49 supreme court shall be binding on all courts within the territory of india 245 extent of laws made by parliament and by the legislatures of states 1 subject to the provisions of this constitution parliament may make laws for the whole or any part of the territory of india and the legislature of a state may make laws for the whole or any part of the state 2 no law made by parliament shall be deemed to be invalid on the ground that it would have extra territorial operation emphasis supplied 106 that the legislature cannot declare law is embedded in anglo saxon jurisprudence bills of attainder which used to be passed by parliament in england have never been passed from the 18th century onwards a legislative judgment is anathema as early as 1789 the us constitution expressly outlawed bills of attainder vide article i section 9 3 this being the case with the legislature the counter argument is that the judiciary equally cannot make but can only declare law while declaring the law can judges make law as well 45 the concurring judgment went on to state 127 it is thus clear on a reading of english us australian and our own supreme court judgments that the lakshman rekha has in fact been extended to move away from the strictly literal rule of interpretation back to the rule of the old english case of heydon heydon case 1584 3 co rep 7a 76 er 637 where the court must have recourse to the purpose object text and context of a particular provision before arriving at a judicial result in fact the wheel has turned full circle it started out by the rule as stated in 1584 in heydon case heydon case 50 1584 3 co rep 7a 76 er 637 which was then waylaid by the literal interpretation rule laid down by the privy council and the house of lords in the mid 1800s and has come back to restate the rule somewhat in terms of what was most felicitously put over 400 years ago in heydon case heydon case 1584 3 co rep 7a 76 er 637 139 a reading of the act as a whole in the light of the statement of objects and reasons thus makes it clear that the intention of the legislator was to focus on children as commonly understood i e persons who are physically under the age of 18 years the golden rule in determining whether the judiciary has crossed the lakshman rekha in the guise of interpreting a statute is really whether a judge has only ironed out the creases that he found in a statute in the light of its object or whether he has altered the material of which the act is woven in short the difference is the well known philosophical difference between is and ought does the judge put himself in the place of the legislator and ask himself whether the legislator intended a certain result or does he state that this must have been the intent of the legislator and infuse what he thinks should have been done had he been the legislator if the latter it is clear that the judge then would add something more than what there is in the statute by way of a supposed intention of the legislator and would go beyond creative interpretation of legislation to legislating itself it is at this point that the judge crosses the lakshman rekha and becomes a legislator stating what the law ought to be instead of what the law is 46 ultimately the judgment concluded 146 a reading of the objects and reasons of the aforesaid act together with the provisions contained therein would show that whatever is the physical age of the person affected such person would be a person with disability 51 who would be governed by the provisions of the said act conspicuous by its absence is the reference to any age when it comes to protecting persons with disabilities under the said act 147 thus it is clear that viewed with the lens of the legislator we would be doing violence both to the intent and the language of parliament if we were to read the word mental into section 2 1 d of the 2012 act given the fact that it is a beneficial penal legislation we as judges can extend it only as far as parliament intended and no further i am in agreement therefore with the judgment of my learned brother including the directions given by him 47 given the lakshman rekha laid down in this judgment it is a little difficult to appreciate how a cap can be judicially engrafted onto a statutory provision which then bars condonation of delay by even one day beyond the cap so engrafted 48 shri george however relied upon the judgments of this court in chandi prasad v jagdish prasad 2004 8 scc 724 at paragraph 22 and d purushotama reddy v k sateesh 2008 8 scc 505 at paragraph 11 to support the reasoning contained in varindera constructions supra and n v international supra he relied strongly upon paragraph 11 of the judgment in d purushotama reddy v k sateesh 2008 8 scc 505 which reads as follows 11 we have noticed hereinbefore that whereas the judgment of conviction and sentence was passed on 15 12 2005 the suit was decreed by the civil court on 23 1 52 2006 deposit of a sum of rs 2 00 000 by the appellants in favour of the respondent herein was directed by the criminal court such an order should have been taken into consideration by the trial court an appeal from a decree furthermore is a continuation of suit the limitation of power on a civil court should also be borne in mind by the appellate court was any duty cast upon the civil court to consider the amount of compensation deposited in terms of section 357 of the code is the question 49 from this paragraph what was sought to be argued was that the limitation of power on a civil court at the initial stage can be read as a limitation onto the appellate court as was done in the aforesaid judgments we are afraid that we are unable to agree this sentence was in the context of a decree passed in a civil suit for a sum of rupees 3 09 lakh with interest without taking into consideration the fact that an amount of rupees 2 10 lakh had already been deposited by the appellant in criminal proceedings the court relied upon section 357 5 of the code of criminal procedure 1973 to hold that the court shall take into account any sum paid or recovered as compensation at the time of awarding compensation in any subsequent civil suit relating to the same matter the court would obviously include an appellate court as well it was only in this context that the aforesaid observation of limitation of power on a civil court being borne in mind by the appellate court was made 53 50 shri george s reliance upon the judgment of this court in p radha bai v p ashok kumar 2019 13 scc 445 at paragraphs 36 2 36 3 on the doctrine of unbreakability when applied to section 34 3 of the arbitration act also does not carry the matter much further as the question is whether this doctrine can be bodily lifted and engrafted onto an appeal provision that has no cut off point beyond which delay cannot be condoned for all these reasons given the illuminating arguments made in these appeals we are of the view that n v international supra has been wrongly decided and is therefore overruled 51 however the matter does not end here the question still arises as to the application of section 5 of the limitation act to appeals which are governed by a uniform 60 day period of limitation at one extreme we have the judgment in n v international supra which does not allow condonation of delay beyond 30 days and at the other extreme we have an open ended provision in which any amount of delay can be condoned provided sufficient cause is shown it is between these two extremes that we have to steer a middle course 54 52 one judicial tool with which to steer this course is contained in the latin maxim ut res magis valeat quam pereat this maxim was fleshed out in cit v hindustan bulk carriers 2003 3 scc 57 as follows 2 14 a construction which reduces the statute to a futility has to be avoided a statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat i e a liberal construction should be put upon written instruments so as to uphold them if possible and carry into effect the intention of the parties see broom s legal maxims 10th edn p 361 craies on statutes 7th edn p 95 and maxwell on statutes 11th edn p 221 15 a statute is designed to be workable and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable see whitney v irc 1926 ac 37 10 tax cas 88 95 ljkb 165 134 lt 98 hl ac at p 52 referred to in cit v s teja singh air 1959 sc 352 1959 35 itr 408 and gursahai saigal v cit air 1963 sc 1062 1963 48 itr 1 16 the courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used see salmon v duncombe 1886 11 ac 627 55 ljpc 69 55 lt 446 pc ac at p 634 curtis v stovin 1889 22 qbd 513 58 ljqb 174 60 lt 772 ca referred to in s teja singh case air 1959 sc 352 1959 35 itr 408 2 followed in the separate opinion delivered by pasayat j in ashoka kumar thakur v union of india 2008 6 scc 1 see paragraphs 333 334 55 17 if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that parliament would legislate only for the purpose of bringing about an effective result see nokes v doncaster amalgamated collieries 1940 3 all er 549 1940 ac 1014 109 ljkb 865 163 lt 343 hl referred to in pye v minister for lands for nsw 1954 3 all er 514 1954 1 wlr 1410 pc the principles indicated in the said cases were reiterated by this court in mohan kumar singhania v union of india 1992 supp 1 scc 594 1992 scc l s 455 1992 19 atc 881 air 1992 sc 1 18 the statute must be read as a whole and one provision of the act should be construed with reference to other provisions in the same act so as to make a consistent enactment of the whole statute 19 the court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute it must compare the clause with other parts of the law and the setting in which the clause to be interpreted occurs see r s raghunath v state of karnataka 1992 1 scc 335 1992 scc l s 286 1992 19 atc 507 air 1992 sc 81 such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute it is the duty of the court to avoid a head on clash between two sections of the same act see sultana begum v prem chand jain 1997 1 scc 373 air 1997 sc 1006 20 whenever it is possible to do so it must be done to construe the provisions which appear to conflict so that they harmonise it should not be lightly assumed that 56 parliament had given with one hand what it took away with the other 21 the provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them thus a construction that reduces one of the provisions to a useless lumber or dead letter is not a harmonised construction to harmonise is not to destroy 53 reading the arbitration act and the commercial courts act as a whole it is clear that when section 37 of the arbitration act is read with either article 116 or 117 of the limitation act or section 13 1a of the commercial courts act the object and context provided by the aforesaid statutes read as a whole is the speedy disposal of appeals filed under section 37 of the arbitration act to read section 5 of the limitation act consistently with the aforesaid object it is necessary to discover as to what the expression sufficient cause means in the context of condoning delay in filing appeals under section 37 of the arbitration act 54 the expression sufficient cause contained in section 5 of the limitation act is elastic enough to yield different results depending upon the object and context of a statute thus in ajmer kaur v state of punjab 2004 7 scc 381 this court in the context of section 11 5 of the punjab land reforms act 1972 held as follows 57 10 permitting an application under section 11 5 to be moved at any time would have disastrous consequences the state government in which the land vests on being declared as surplus will not be able to utilise the same the state government cannot be made to wait indefinitely before putting the land to use truncated reportable in the supreme court of india civil appellate jurisdiction civil appeal no 995 of 2021 slp civil no 665 of 2021 government of maharashtra water resources department represented by executive engineer appellant versus m s borse brothers engineers contractors pvt ltd respondent with civil appeal no 999 of 2021 slp civil no 15278 of 2020 and civil appeal no 996 998 of 2021 slp civil no 4872 4874 of 2021 diary no 18079 of 2020 j u d g m e n t r f nariman j 1 leave granted delay condoned in slp c diary no 18079 of 2020 2 the substantial question of law which arises in these appeals is as to 1 whether the judgment of a division bench of this court in n v international v state of assam 2020 2 scc 109 n v international lays down the law correctly this court followed its earlier judgment in union of india v varindera constructions ltd 2020 2 scc 111 varindera constructions and held as follows 3 having heard the learned counsel for both sides we may observe that the matter is no longer res integra in union of india v varindera constructions ltd union of india v varindera constructions ltd 2020 2 scc 111 this court by its judgment and order dated 17 9 2018 union of india v varindera constructions ltd 2020 2 scc 111 held thus scc p 112 paras 1 5 1 heard the learned counsel appearing for the parties 2 by a judgment dated 19 4 2018 in union of india v varindera constructions ltd union of india v varindera constructions ltd 2018 7 scc 794 this court has in near identical facts and circumstances allowed the appeal of the union of india in a proceeding arising from an arbitral award 3 ordinarily we would have applied the said judgment to this case as well however we find that the impugned division bench judgment dated 10 4 2013 union of india v varindera constructions ltd 2013 scc online del 6511 has dismissed the appeal filed by the union of india on the ground of delay the delay was found to be 142 days in filing the appeal and 103 days in refiling the appeal one of the important points 2 made by the division bench is that apart from the fact that there is no sufficient cause made out in the grounds of delay since a section 34 application has to be filed within a maximum period of 120 days including the grace period of 30 days an appeal filed from the selfsame proceeding under section 37 should be covered by the same drill 4 given the fact that an appellate proceeding is a continuation of the original proceeding as has been held in lachmeshwar prasad shukul v keshwar lal chaudhuri lachmeshwar prasad shukul v keshwar lal chaudhuri 1940 scc online fc 10 air 1941 fc 5 and repeatedly followed by our judgments we feel that any delay beyond 120 days in the filing of an appeal under section 37 from an application being either dismissed or allowed under section 34 of the arbitration and conciliation act 1996 should not be allowed as it will defeat the overall statutory purpose of arbitration proceedings being decided with utmost despatch 5 in this view of the matter since even the original appeal was filed with a delay period of 142 days we are not inclined to entertain these special leave petitions on the facts of this particular case the special leave petitions stand disposed of accordingly pending applications if any also stand disposed of 4 we may only add that what we have done in the aforesaid judgment is to add to the period of 90 days which is provided by statute for filing of appeals under 3 section 37 of the arbitration act a grace period of 30 days under section 5 of the limitation act by following lachmeshwar prasad shukul lachmeshwar prasad shukul v keshwar lal chaudhuri 1940 scc online fc 10 air 1941 fc 5 as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in the minds of the framers of the 1996 act and which has been strengthened from time to time by amendments made thereto the present delay being beyond 120 days is not liable therefore to be condoned 3 in two of the three appeals before us i e civil appeal arising out of slp c no 665 of 2021 and civil appeal arising out of slp c diary no 18079 of 2020 the high courts of bombay and delhi vide judgments dated 17 12 2020 and 15 10 2019 respectively dismissed the appeals filed by the government of maharashtra and by the union of india respectively refusing to condone the delay in the filing of the appeal under section 37 of the arbitration and conciliation act 1996 arbitration act beyond 120 days so far as the civil appeal arising out of slp c no 15278 of 2020 is concerned the high court of madhya pradesh refused to follow the judgment of this court in n v international supra stating that there is a conflict between this judgment and the judgment of a larger bench of this court reported in consolidated engg enterprises v irrigation deptt 2008 7 scc 169 consolidated engg it was therefore held that it was open for the high court to condone the delay applying section 5 of the 4 limitation act 1963 limitation act and as a matter of fact a delay of what was stated to be 57 days was condoned 4 shri sandeep sudhakar deshmukh learned counsel appearing on behalf of the government of maharashtra water resources department govt of maharashtra the appellant in civil appeal arising out of slp c no 665 of 2021 submitted that the arbitration act in its original avatar did not include the concept or idea of expeditious resolution of disputes at best the arbitration act can be treated as a mechanism providing for alternate dispute resolution this original objective is continued by the arbitration and conciliation amendment act 2015 2015 amendment which provides a time limit for arbitral awards and for fast track procedure contained in sections 29a and 29b of the arbitration act this being the case the very foundation of n v international supra is erroneous in law shri deshmukh also argued that section 37 of the arbitration act provides for appeals from several orders including orders made under sections 8 9 16 and 17 apart from orders that may be made under section 34 of the arbitration act according to him the rationale or logic contained in n v international supra would perhaps apply only to appeals from section 34 orders but not to orders that are passed under any of the other aforesaid sections as there is no hard and fast application of 5 a 120 day limitation period when it comes to applications that have been filed under any of these sections 5 shri deshmukh also argued that section 33 of the arbitration act contemplates correction and interpretation of an award the arbitral tribunal being clothed with the power to extend time without there being any outer limit he also stated that vide section 29 2 of the limitation act the period of limitation for filing applications under the arbitration act would be governed by article 137 of the limitation act providing for a much longer limitation period of three years he further argued that articles 116 and 117 of the limitation act provide different periods of limitation being 90 days and 30 days respectively since these different prescribed periods lead to arbitrary results the concept of an appeal would have to be read into the definition of the term application so that the appeal provision under section 37 of the arbitration act is uniformly governed by article 137 of the limitation act which would lead to a uniform limitation period of three years he also argued that to read the period of limitation contemplated under section 34 3 for an appeal filed under section 37 of the arbitration act would amount to judicial legislation due to the absence of any period of limitation provided in section 37 he placed reliance on a large number of judgments citing cases where the limitation act had been 6 held to be applicable to arbitration proceedings and others in which it had not so been held he also cited a large number of judgments on section 29 2 of the limitation act relating to the meaning of express exclusion under the said section he then cited judgments on the applicability of article 137 of the limitation act and a judgment which eschews judicial legislation 6 ms aishwarya bhati learned additional solicitor general appearing on behalf of the union of india the appellant in the civil appeal arising out of slp c diary no 18079 of 2020 read in detail the provisions of the commercial courts act 2015 commercial courts act and referred to the two law commission reports which led to its enactment namely the 188th law commission report and the 253rd law commission report she then referred to this court s judgments in kandla export corpn v oci corpn 2018 14 scc 715 kandla export corpn and bgs sgs soma jv v nhpc 2020 4 scc 234 dealing with the interplay between section 13 of the commercial courts act and section 37 of the arbitration act she argued that a limitation period of 60 days was laid down by section 13 1a of the commercial courts act and though section 14 thereof commands that an expeditious disposal of appeals take place within a period of six months from the date of filing such appeal neither of the 7 two provisions bound appellate courts not to apply section 5 of the limitation act to relax the period of limitation in deserving cases she also relied upon section 12a of the commercial courts act which speaks of the limitation act in the context of the commercial courts act she then referred to section 16 of the commercial courts act read with the schedule and in particular the amendment made to order viii rule 1 of the code of civil procedure 1908 cpc which closes the right of defence after a certain period of limitation is over which is to be contrasted with section 13 of the commercial courts act which contains no such provision she then referred to judgments under different statutes such as the insolvency and bankruptcy code 2016 ibc and the electricity act 2003 in which section 5 of the limitation act becomes inapplicable by virtue of either the scheme of the statute in question or by virtue of an express exclusion spoken of in section 29 2 of the limitation act 7 shri amalpushp shroti learned counsel appearing for the respondents in the civil appeal arising out of slp c no 15278 of 2020 broadly supported the arguments of shri deshmukh and ms bhati while citing certain other judgments to buttress the same submissions 8 shri vinay navare learned senior advocate appearing for m s borse brothers engineers and contractors pvt ltd borse bros the 8 respondent in the civil appeal arising out of slp c no 665 of 2021 was at pains to point out the conduct of the govt of maharashtra and added that if a period of 60 days is to be reckoned under the commercial courts act the appeal filed by the govt of maharashtra would be delayed by a period of 131 days for which there is no explanation worthy of the name he relied heavily on the impugned judgment of the high court of bombay which had also stated that though the certified copy of the judgment was applied for and was ready by 27 05 2019 the govt of maharashtra wrongly mentioned that it received such copy only on 24 07 2019 as a result of which the govt of maharashtra had not appeared before the high court with clean hands 9 further shri navare sought to answer shri deshmukh s submission that the rationale of n v international supra can and should apply to an appeal filed against a section 34 order as several different appeal provisions were all bunched together in one section and could have been the subject matter of different appellate provisions contained in the very original proceeding that was sought to be appealed against he therefore argued that the scheme contained in the arbitration act insofar as appeals from section 8 applications are concerned is that it is only if a section 8 application is refused that an 9 appeal lies and not otherwise contrasting it with an appeal against a section 34 order which lies whether or not the court allows the section 34 application hence according to the learned senior advocate each appellate provision would have its own rationale appeals in the cases of section 8 9 16 and 17 of the arbitration act allowing for sufficient cause to be shown beyond the period of 30 days as opposed to appeals filed under section 34 which ought to allow for sufficient cause being shown upto a period of 30 days or else the whole object of section 34 would be destroyed he referred to the statement of objects and reasons of the arbitration act and judgments to show that shri deshmukh s submission that the arbitration act provided only alternate dispute resolution and not speedy disposal was wholly incorrect he also pointed out that specific timelines are contained in several sections of the arbitration act such as sections 9 2 11 4 11 13 13 2 5 29a 29b 33 3 5 and 34 3 to indicate that the object of speedy disposal was at the heart of the arbitration act 10 shri navare then relied upon the commercial courts act and in particular on sections 13 1a and 14 to show that the whole object of speedy disposal of appeals contained in the commercial courts act would be given a go bye if long periods of delay beyond 30 days are to be condoned since the appeal itself has to be decided within a 10 period of six months he also cited a number of judgments and supported the judgment of this court in n v international supra by arguing that a judge is not helpless when faced with a provision which when literally read would result in arbitrary and unjust orders being passed he also referred to judgments where a casus omissus could be supplied which is what was done in n v international supra 11 shri manoj chouhan learned counsel appearing on behalf of m s swastik wires the appellant in civil appeal arising out of slp c no 15278 of 2020 supported the impugned judgment dated 27 01 2020 of the high court of madhya pradesh and argued that this court s judgment in consolidated engg supra being a judgment of three learned judges would prevail over the judgment of this court in n v international supra which is only delivered by two learned judges and therefore delay can be condoned he also added that once section 5 of the limitation act applies the court cannot impose any limits on the expression sufficient cause and even if there are long delays and sufficient cause is made out such delays can be condoned further he argued that this court could use article 142 of the constitution which is a veritable brahmÄstra and panacea for all ills to do justice in individual cases 12 dr amit george learned counsel appearing for m s associated 11 construction co the respondent in the civil appeal arising out of slp c diary no 18079 of 2020 argued that section 13 of the commercial courts act having regard to the object of speedy disposal sought to be achieved excludes the application of section 5 of the limitation act altogether for this purpose he relied heavily upon the judgment of this court in kandla export corpn supra and the judgment of this court in cce customs v hongo india p ltd 2009 5 scc 791 hongo which dealt with section 35 h 1 of the central excise act 1944 central excise act he also relied upon other judgments which interpreted section 29 2 of the limitation act to state that the scheme of a particular statute may make it clear that there is an express exclusion of section 5 of the limitation act which is the case under the commercial courts act he then relied strongly upon the judgment in n v international supra by supporting its logic and citing judgments which would show that other sections of the limitation act were excluded in the context of section 34 3 of the arbitration act such as sections 4 and 17 of the limitation act in any case he argued that on facts sufficient cause had not been made out and that the judgment of the high court of delhi dated 15 10 2019 ought to be set aside on this ground also 13 the arguments that have been made in these appeals and the 12 case law cited have gone way beyond the narrow question which arises before us however in dealing with these arguments it is necessary to first set out the relevant statutory provisions contained in the three statutes that have been strongly relied upon by either side in these appeals 14 first and foremost the arbitration act has in its statement of objects and reasons the following 4 the main objectives of the bill are as under xxx xxx xxx ii to make provision for an arbitral procedure which is fair efficient and capable of meeting the needs of the specific arbitration xxx xxx xxx v to minimise the supervisory role of courts in the arbitral process 15 as has correctly been pointed out by shri navare the requirement of an arbitral procedure which is efficient and the minimising of the supervisory role of courts in arbitral process would certainly show that one of the main objectives of the arbitration act is the speedy disposal of disputes through the arbitral process section 5 of the arbitration act is important and states 13 5 extent of judicial intervention notwithstanding anything contained in any other law for the time being in force in matters governed by this part no judicial authority shall intervene except where so provided in this part 16 the other relevant provisions of the arbitration act provide as follows 8 power to refer parties to arbitration where there is an arbitration agreement 1 a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall if a party to the arbitration agreement or any person claiming through or under him so applies not later than the date of submitting his first statement on the substance of the dispute then notwithstanding any judgment decree or order of the supreme court or any court refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists 2 the application referred to in sub section 1 shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof 2 provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub section 1 and the said agreement or certified copy is retained by the other party to that agreement then the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that court 3 notwithstanding that an application has been made under sub section 1 and that the issue is pending before the judicial authority an arbitration may be commenced or continued and an arbitral award made 14 9 interim measures etc by court xxx xxx xxx 2 where before the commencement of the arbitral proceedings a court passes an order for any interim measure of protection under sub section 1 the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the court may determine 11 appointment of arbitrators xxx xxx xxx 4 if the appointment procedure in sub section 3 applies and a a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party or b the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment the appointment shall be made upon request of a party by the supreme court or as the case may be the high court or any person or institution designated by such court xxx xxx xxx 13 an application made under this section for appointment of an arbitrator or arbitrators shall be disposed of by the supreme court or the high court or the person or institution designated by such court as the case maybe as expeditiously as possible and an endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party 15 13 challenge procedure 1 subject to sub section 4 the parties are free to agree on a procedure for challenging an arbitrator 2 failing any agreement referred to in sub section 1 a party who intends to challenge an arbitrator shall within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub section 3 of section 12 send a written statement of the reasons for the challenge to the arbitral tribunal 3 unless the arbitrator challenged under sub section 2 withdraws from his office or the other party agrees to the challenge the arbitral tribunal shall decide on the challenge 4 if a challenge under any procedure agreed upon by the parties or under the procedure under subsection 2 is not successful the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award 5 where an arbitral award is made under sub section 4 the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34 6 where an arbitral award is set aside on an application made under sub section 5 the court may decide as to whether the arbitrator who is challenged is entitled to any fees 16 competence of arbitral tribunal to rule on its jurisdiction xxx xxx xxx 16 2 a plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence however a party shall not be precluded from raising such a plea merely because that he has appointed or participated in the appointment of an arbitrator 29a time limit for arbitral award 1 the award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub section 4 of section 23 provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavor may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub section 4 of section 23 2 if the award is made within a period of six months from the date the arbitral tribunal enters upon the reference the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree 3 the parties may by consent extend the period specified in sub section 1 for making award for a further period not exceeding six months 4 if the award is not made within the period specified in sub section 1 or the extended period specified under sub section 3 the mandate of the arbitrator s shall terminate unless the court has either prior to or after the expiry of the period so specified extended the period 17 provided that while extending the period under this sub section if the court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal then it may order reduction of fees of arbitrator s by not exceeding five per cent for each month of such delay provided further that where an application under sub section 5 is pending the mandate of the arbitrator shall continue till the disposal of the said application provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced 5 the extension of period referred to in sub section 4 may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the court 6 while extending the period referred to in sub section 4 it shall be open to the court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record and the arbitrator s appointed under this section shall be deemed to have received the said evidence and material 7 in the event of arbitrator s being appointed under this section the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal 8 it shall be open to the court to impose actual or exemplary costs upon any of the parties under this section 9 an application filed under sub section 5 shall be disposed of by the court as expeditiously as possible and 18 endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party 29b fast track procedure 1 notwithstanding anything contained in this act the parties to an arbitration agreement may at any stage either before or at the time of appointment of the arbitral tribunal agree in writing to have their dispute resolved by fast track procedure specified in sub section 3 2 the parties to the arbitration agreement while agreeing for resolution of dispute by fast track procedure may agree that the arbitral tribunal shall consist of a sole arbitrator who shall be chosen by the parties 3 the arbitral tribunal shall follow the following procedure while conducting arbitration proceedings under sub section 1 a the arbitral tribunal shall decide the dispute on the basis of written pleadings documents and submissions filed by the parties without any oral hearing b the arbitral tribunal shall have power to call for any further information or clarification from the parties in addition to the pleadings and documents filed by them c an oral hearing may be held only if all the parties make a request or if the arbitral tribunal considers it necessary to have oral hearing for clarifying certain issues d the arbitral tribunal may dispense with any technical formalities if an oral hearing is held and adopt such procedure as deemed appropriate for expeditious disposal of the case 4 the award under this section shall be made within a period of six months from the date the arbitral tribunal enters upon the reference 19 5 if the award is not made within the period specified in sub section 4 the provisions of subsections 3 to 9 of section 29a shall apply to the proceedings 6 the fees payable to the arbitrator and the manner of payment of the fees shall be such as may be agreed between the arbitrator and the parties 33 correction and interpretation of award additional award xxx xxx xxx 3 the arbitral tribunal may correct any error of the type referred to in clause a of sub section 1 on its own initiative within thirty days from the date of the arbitral award 4 unless otherwise agreed by the parties a party with notice to the other party may request within thirty days from the receipt of the arbitral award the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award 5 if the arbitral tribunal considers the request made under sub section 4 to be justified it shall make the additional arbitral award within sixty days from the receipt of such request 34 application for setting aside arbitral award xxx xxx xxx 3 an application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral 20 award or if a request had been made under section 33 from the date on which that request had been disposed of by the arbitral tribunal provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days but not thereafter 37 appealable orders 1 notwithstanding anything contained in any other law for the time being in force an appeal shall lie from the following orders and from no others to the court authorised by law to hear appeals from original decrees of the court passing the order namely a refusing to refer the parties to arbitration under section 8 b granting or refusing to grant any measure under section 9 c setting aside or refusing to set aside an arbitral award under section 34 2 appeal shall also lie to a court from an order of the arbitral tribunal a accepting the plea referred to in sub section 2 or sub section 3 of section 16 or b granting or refusing to grant an interim measure under section 17 3 no second appeal shall lie from an order passed in appeal under this section but nothing in this section shall affect or takeaway any right to appeal to the supreme court 43 limitations 21 1 the limitation act 1963 36 of 1963 shall apply to arbitrations as it applies to proceedings in court 2 for the purposes of this section and the limitation act 1963 36 of 1963 an arbitration shall be deemed to have commenced on the date referred to in section 21 3 where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement and a dispute arises to which the agreement applies the court if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused and notwithstanding that the time so fixed has expired may on such terms if any as the justice of the case may require extend the time for such period as it thinks proper 4 where the court orders that an arbitral award be set aside the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the limitation act 1963 36 of 1963 for the commencement of the proceedings including arbitration with respect to the dispute so submitted 17 so far as the limitation act is concerned sections 5 and 29 2 read as follows 5 extension of prescribed period in certain cases any appeal or any application other than an application under any of the provisions of order xxi of the code of civil procedure 1908 5 of 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such 22 period explanation the fact that the appellant or the applicant was missed by any order practice or judgment of the high court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section 29 savings xxx xxx xxx 2 where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the schedule the provisions of section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any special or local law the provisions contained in sections 4 to 24 inclusive shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law 18 further the relevant articles of the schedule provide as follows the schedule periods of limitation xxx xxx xxx description of suit period of time from which limitation period begins to run 116 under the code of civil procedure 1908 5 of 1908 23 a to a high court ninety days the date of the from any decree or decree or order order b to any other thirty days the date of the court from any decree or order decree or order 117 from a decree thirty days the date of the or order of any high decree or order court to the same court 137 any other three years when the right to application for which apply accrues no period of limitation is provided elsewhere in this division 19 the commercial courts act states in its statement of objects and reasons the following statement of objects and reasons the proposal to provide for speedy disposal of high value commercial disputes has been under consideration of the government for quite some time the high vlaue commercial disputes involve complex facts and question of law therefore there is a need to provide for an independent mechanism for their early resolution early resolution of commercial disputes shall create a positive image to the investor world about the independent and responsive indian legal system 6 it is proposed to introduced the commercial courts commercial division and commercial appellate division of high courts bill 2015 to replace the commercial courts commercial division and commercial appellate division of 24 high courts ordinance 2015 which inter alia provides for the following namely xxx xxx xxx v to amend the code of civil procedure 1908 as applicable to the commercial courts and commercial divisions which shall prevail over the existing high courts rules and other provisions of the code of civil procedure 1908 so as to improve the efficiency and reduce delays in disposal of commercial cases 7 the proposed bill shall accelerate economic growth improve the international image of the indian justice delivery system and the faith of the investor world in the legal culture of the nation 20 section 2 1 i of the commercial courts act defines specified value as follows 2 definitions 1 in this act unless the context otherwise requires xxx xxx xxx i specified value in relation to a commercial dispute shall mean the value of the subject matter in respect of a suit as determined in accordance with section 12 which shall not be less than three lakh rupees or such higher value as may be notified by the central government 21 chapter ii of the commercial courts act sets up commercial courts commercial appellate courts commercial divisions and commercial appellate divisions so far as arbitration is concerned 25 section 10 is important and states as follows 10 jurisdiction in respect of arbitration matters where the subject matter of an arbitration is a commercial dispute of a specified value and 1 if such arbitration is an international commercial arbitration all applications or appeals arising out of such arbitration under the provisions of the arbitration and conciliation act 1996 26 of 1996 that have been filed in a high court shall be heard and disposed of by the commercial division where such commercial division has been constituted in such high court 2 if such arbitration is other than an international commercial arbitration all applications or appeals arising out of such arbitration under the provisions of the arbitration and conciliation act 1996 26 of 1996 that have been filed on the original side of the high court shall be heard and disposed of by the commercial division where such commercial division has been constituted in such high court 3 if such arbitration is other than an international commercial arbitration all applications or appeals arising out of such arbitration under the provisions of the arbitration and conciliation act 1996 26 of 1996 that would ordinarily lie before any principal civil court of original jurisdiction in a district not being a high court shall be filed in and heard and disposed of by the commercial court exercising territorial jurisdiction over such arbitration where such commercial court has been constituted 22 the other relevant provisions of the commercial courts act are set out as follows 26 13 appeals from decrees of commercial courts and commercial divisions 1 any person aggrieved by the judgment or order of a commercial court below the level of a district judge may appeal to the commercial appellate court within a period of sixty days from the date of judgment or order 1a any person aggrieved by the judgment or order of a commercial court at the level of district judge exercising original civil jurisdiction or as the case may be commercial division of a high court may appeal to the commercial appellate division of that high court within a period of sixty days from the date of the judgment or order provided that an appeal shall lie from such orders passed by a commercial division or a commercial court that are specifically enumerated under order xliii of the code of civil procedure 1908 5 of 1908 as amended by this act and section 37 of the arbitration and conciliation act 1996 26 of 1996 2 notwithstanding anything contained in any other law for the time being in force or letters patent of a high court no appeal shall lie from any order or decree of a commercial division or commercial court otherwise than in accordance with the provisions of this act 14 expeditious disposal of appeals the commercial appellate court and the commercial appellate division shall endeavour to dispose of appeals filed before it within a period of six months from the date of filing of such appeal 16 amendments to the code of civil procedure 1908 in its application to commercial disputes 1 the provisions of the code of civil procedure 1908 5 of 1908 shall in their application to any suit in respect of a 27 commercial dispute of a specified value stand amended in the manner as specified in the schedule 2 the commercial division and commercial court shall follow the provisions of the code of civil procedure 1908 5 of 1908 as amended by this act in the trial of a suit in respect of a commercial dispute of a specified value 3 where any provision of any rule of the jurisdictional high court or any amendment to the code of civil procedure 1908 5 of 1908 by the state government is in conflict with the provisions of the code of civil procedure 1908 5 of 1908 as amended by this act the provisions of the code of civil procedure as amended by this act shall prevail 21 act to have overriding effect save as otherwise provided the provisions of this act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law for the time being in force other than this act schedule 4 amendment of first schedule in the first schedule to the code xxx xxx xxx d in order viii i in rule 1 for the proviso the following proviso shall be substituted namely provided that where the defendant fails to file the written statement within the said period of thirty days he shall be allowed to file the written statement on such other day as may be specified by the court for reasons to be 28 recorded in writing and on payment of such costs as the court deems fit but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record 23 section 37 of the arbitration act when read with section 43 thereof makes it clear that the provisions of the limitation act will apply to appeals that are filed under section 37 this takes us to articles 116 and 117 of the limitation act which provide for a limitation period of 90 days and 30 days depending upon whether the appeal is from any other court to a high court or an intra high court appeal there can be no doubt whatsoever that section 5 of the limitation act will apply to the aforesaid appeals both by virtue of section 43 of the arbitration act and by virtue of section 29 2 of the limitation act this aspect of the matter has been set out in the concurring judgment of raveendran j in consolidated engg supra as follows 40 let me next refer to the relevant provisions of the limitation act section 3 of the limitation act provides for the bar of limitation it provides that subject to the provisions contained in sections 4 to 24 inclusive every suit instituted appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence prescribed period means that period of limitation computed in accordance 29 with the provisions of the limitation act period of limitation means the period of limitation prescribed for any suit appeal or application by the schedule to the limitation act vide section 2 j of the said act section 29 of the limitation act relates to savings sub section 2 thereof which is relevant is extracted below 29 2 where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed by the schedule the provisions of section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any special or local law the provisions contained in sections 4 to 24 inclusive shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law 41 article 116 of the schedule prescribes the period of limitation for appeals to the high court 90 days and appeals to any other court 30 days under the code of civil procedure 1908 it is now well settled that the words appeals under the code of civil procedure 1908 occurring in article 116 refer not only to appeals preferred under the code of civil procedure 1908 but also to appeals where the procedure for filing of such appeals and powers of the court for dealing with such appeals are governed by the code of civil procedure see decision of the constitution bench in vidyacharan shukla v khubchand baghel air 1964 sc 1099 article 119 b of the schedule prescribes the period of limitation for filing an application under the arbitration act 1940 for setting aside an award as thirty days from the date of service of notice of filing of the award 30 42 the ac act is no doubt a special law consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto the ac act does not prescribe the period of limitation for various proceedings under that act except where it intends to prescribe a period different from what is prescribed in the limitation act on the other hand section 43 makes the provisions of the limitation act 1963 applicable to proceedings both in court and in arbitration under the ac act there is also no express exclusion of application of any provision of the limitation act to proceedings under the ac act but there are some specific departures from the general provisions of the limitation act as for example the proviso to section 34 3 and sub sections 2 to 4 of section 43 of the ac act 43 where the schedule to the limitation act prescribes a period of limitation for appeals or applications to any court and the special or local law provides for filing of appeals and applications to the court but does not prescribe any period of limitation in regard to such appeals or applications the period of limitation prescribed in the schedule to the limitation act will apply to such appeals or applications and consequently the provisions of sections 4 to 24 will also apply where the special or local law prescribes for any appeal or application a period of limitation different from the period prescribed by the schedule to the limitation act then the provisions of section 29 2 will be attracted in that event the provisions of section 3 of the limitation act will apply as if the period of limitation prescribed under the special law was the period prescribed by the schedule to the limitation act and for the purpose of determining any period of limitation prescribed for the appeal or application by the special law the provisions contained in sections 4 to 24 will apply to the extent to which they are not expressly excluded by such special law the object of section 29 2 is to ensure 31 that the principles contained in sections 4 to 24 of the limitation act apply to suits appeals and applications filed in a court under special or local laws also even if it prescribes a period of limitation different from what is prescribed in the limitation act except to the extent of express exclusion of the application of any or all of those provisions 24 when the commercial courts act is applied to the aforesaid appeals given the definition of specified value and the provisions contained in sections 10 and 13 thereof it is clear that it is only when the specified value is for a sum less than three lakh rupees that the appellate provision contained in section 37 of the arbitration act will be governed for the purposes of limitation by articles 116 and 117 of the limitation act shri deshmukh s argument that depending upon which court decides a matter a limitation period of either 30 or 90 days is provided which leads to arbitrary results and that therefore the uniform period provided by article 137 of the limitation act should govern appeals as well is rejected it is settled that periods of limitation must always to some extent be arbitrary and may result in some hardship but this is no reason as to why they should not be strictly followed in boota mal v union of india 1963 1 scr 70 this court referred to this aspect of the case as follows ordinarily the words of a statute have to be given their strict grammatical meaning and equitable considerations are out of place particularly in provisions of law limiting the 32 period of limitation for filing suits or legal proceedings this was laid down by the privy council in two decisions in nagendranath v suresh air 1932 pc 165 and general accident fire and life assurance corporation limited v janmahomed abdul rahim air 1941 pc 6 in the first case the privy council observed that the fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship but in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide in the latter case it was observed that a limitation act ought to receive such a construction as the language in its plain meaning imports great hardship may occasionally be caused by statutes of limitation in cases of poverty distress and ignorance of rights yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases pages 74 75 25 shri deshmukh s other argument that since no period of limitation has been provided in section 37 of the arbitration act as a result of which the neat division contained in the limitation act of different matters contained in suits appeals and applications will somehow have to be destroyed the word appeals has to be read into applications so that article 137 of the limitation act could apply is also rejected 26 even in the rare situation in which an appeal under section 37 of the arbitration act would be of a specified value less than three lakh rupees resulting in article 116 or 117 of the limitation act applying the main object of the arbitration act requiring speedy resolution of 33 disputes would be the most important principle to be applied when applications under section 5 of the limitation act are filed to condone delay beyond 90 days and or 30 days depending upon whether article 116 a or 116 b or 117 applies as a matter of fact given the timelines contained in sections 8 9 2 11 4 11 13 13 2 5 29a 29b 33 3 5 and 34 3 of the arbitration act and the observations made in some of this court s judgments the object of speedy resolution of disputes would govern appeals covered by articles 116 and 117 of the limitation act 27 this court in union of india v popular construction co 2001 8 scc 470 put it thus 14 here the history and scheme of the 1996 act support the conclusion that the time limit prescribed under section 34 to challenge an award is absolute and unextendible by court under section 5 of the limitation act the arbitration and conciliation bill 1995 which preceded the 1996 act stated as one of its main objectives the need to minimise the supervisory role of courts in the arbitral process para 4 v of the statement of objects and reasons of the arbitration and conciliation act 1996 this objective has found expression in section 5 of the act which prescribes the extent of judicial intervention in no uncertain terms 5 extent of judicial intervention notwithstanding anything contained in any other law for the time being in force in matters governed by this part no judicial authority shall intervene except where so provided in this part 34 15 the part referred to in section 5 is part i of the 1996 act which deals with domestic arbitrations section 34 is contained in part i and is therefore subject to the sweep of the prohibition contained in section 5 of the 1996 act 28 likewise in state of goa v western builders 2006 6 scc 239 truncated 210 2020_c a no 006251 006251 2021 2018 03 08 6251 of 2021 1 in the supreme court of india civil appellate jurisdiction civil appeal no 6251 of 2021 arising out of slp c no 16416 of 2021 diary no 210 2020 state of u p anr appellant s versus shyam lal jaiswal respondent s o r d e r delay condoned leave granted the instant appeal has been preferred by the state of uttar pradesh assailing the order impugned dated 03 08 2018 of the high court of allahabad lucknow bench confirming the order dated 12 12 2013 of the state public services tribunal u p for short the tribunal the facts in brief relevant for the purpose are that the respondent herein was working as a cashier in the transport department since june 1967 while in service for some alleged 2 misconduct departmental inquiry was initiated against him and was later dismissed from service by an order dated 20 11 1975 that order came to be set aside by the tribunal by an order dated 14 02 1984 and finally confirmed on dismissal of the special leave petition by an order dated 20 04 2000 it is to be noticed that the respondent during the pendency of litigation attained the age of superannuation on 31 03 1996 after the order of dismissal dated 20 11 1975 came to be set aside and finally confirmed by this court a fresh litigation was initiated at his instance on the premise that persons who were junior to him i e mr ajay kumar sinha and mr k m haleem were promoted appointed as assistant public prosecutors on 21 02 1980 and once his position has been restored after order of dismissal being set aside he too is entitled for promotion from the date his juniors were promoted as assistant public prosecutors we have heard learned counsel for the parties the grievance of the respondent is not sustainable 3 for the reason that the post of assistant public prosecutor is included in the schedule appended to the uttar pradesh transport subordinate prosecution service rules 1979 for short the 1979 rules which was published in the extraordinary gazette on 27 07 1979 and in terms of rule 5 of the 1979 rules the recruitment to the post of assistant public prosecutor shall be made by direct recruitment on the basis of a competitive examination followed by a viva voce test to be conducted by the commission this fact has been completely ignored by the tribunal and so also by the high court in the order impugned taking the scheme of rules 1979 and rule 5 in particular in our considered view the order of the high court confirming order of the tribunal is not sustainable in law consequently the appeal succeeds and accordingly allowed the order of the high court dated 03 08 2018 confirming the order dated 12 12 2013 of the tribunal is hereby set aside 4 pending application s if any shall stand disposed of j ajay rastogi j abhay s oka new delhi october 07 2021 1 in the supreme court of india civil appellate jurisdiction civil appeal no 6251 of 2021 arising out of slp c no 16416 of 2021 diary no 210 2020 state of u p anr appellant s versus shyam lal jaiswal respondent s o r d e r delay condoned leave granted the instant appeal has been preferred by the state of uttar pradesh assailing the order impugned dated 03 08 2018 of the high court of allahabad lucknow bench confirming the order dated 12 12 2013 of the state public services tribunal u p for short the tribunal the facts in brief relevant for the purpose are that the respondent herein was working as a cashier in the transport department since june 1967 while in service for some alleged 2 misconduct departmental inquiry was initiated against him and was later dismissed from service by an order dated 20 11 1975 that order came to be set aside by the tribunal by an order dated 14 02 1984 and finally confirmed on dismissal of the special leave petition by an order dated 20 04 2000 it is to be noticed that the respondent during the pendency of litigation attained the age of superannuation on 31 03 1996 after the order of dismissal dated 20 11 1975 came to be set aside and finally confirmed by this court a fresh litigation was initiated at his instance on the premise that persons who were junior to him i e mr ajay kumar sinha and mr k m haleem were promoted appointed as assistant public prosecutors on 21 02 1980 and once his position has been restored after order of dismissal being set aside he too is entitled for promotion from the date his juniors were promoted as assistant public prosecutors we have heard learned counsel for the parties the grievance of the respondent is not sustainable 3 for the reason that the post of assistant public prosecutor is included in the schedule appended to the uttar pradesh transport subordinate prosecution service rules 1979 for short the 1979 rules which was published in the extraordinary gazette on 27 07 1979 and in terms of rule 5 of the 1979 rules the recruitment to the post of assistant public prosecutor shall be made by direct recruitment on the basis of a competitive examination followed by a viva voce test to be conducted by the commission this fact has been completely ignored by the tribunal and so also by the high court in the order impugned taking the scheme of rules 1979 and rule 5 in particular in our considered view the order of the high court confirming order of the tribunal is not sustainable in law consequently the appeal succeeds and accordingly allowed the order of the high court dated 03 08 2018 confirming the order dated 12 12 2013 of the tribunal is hereby set aside 4 pending application s if any shall stand disposed of j ajay rastogi j abhay s oka new delhi october 07 2021 212 2020_c a no 000440 000441 2020 4 4 soon tata education trust tata sons supreme court non executive the board of directors of respondent no 2016 10 24 1965 sc 1288 loch v john baird v lees ebrahimi v westbourne 1994 bcc 475 ltd v nageshwara jain v kalinga 1965 sc 1535 ors v needle 1959 scr 1236 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal nos 440 441 0f 2020 tata consultancy services limited appellant s versus cyrus investments pvt ltd and ors respondent s with civil appeal nos 13 14 0f 2020 civil appeal nos 442 443 0f 2020 civil appeal nos 19 20 0f 2020 civil appeal nos 444 445 0f 2020 civil appeal nos 448 449 0f 2020 civil appeal nos 263 264 0f 2020 civil appeal no 1802 0f 2020 j u d g m e n t 1 lis in the appeals 1 1 tata sons private limited has come up with two appeals in civil appeal nos 13 14 of 2020 challenging a final order dated 18 12 2019 passed by the national company law appellate tribunal nclat for short i holding as illegal the proceedings of 2 the sixth meeting of the board of directors of tata sons limited held on 24 10 2016 in so far as it relates to the removal of shri cyrus pallonji mistry cpm for short ii restoring the position of cpm as the executive chairman of tata sons limited and consequently as a director of the tata companies for the rest of the tenure iii declaring as illegal the appointment of someone else in the place of cpm as executive chairman iv restraining shri ratan n tata rnt for short and the nominees of tata trust from taking any decision in advance v restraining the company its board of directors and shareholders from exercising the power under article 75 of the articles of association against the minority members except in exceptional circumstances and in the interest of the company and vi declaring as illegal the decision of the registrar of companies for changing the status of tata sons limited from being a public company into a private company 3 1 2 rnt has come up with two independent appeals in civil appeal nos 19 20 of 2020 against the same order of the nclat on similar grounds 1 3 the trustees of two trusts namely sir ratan tata trust and sir dorabji tata trust have come up with two independent appeals in civil appeal nos 444 445 of 2020 challenging the impugned order of the appellate tribunal a few companies of the tata group which were referred to in the course of arguments as the operating companies or downstream companies such as the tata consultancy services limited the tata teleservices limited and tata industries limited have come up with separate appeals in civil appeal nos 440 441 of 2020 442 443 of 2020 and 448 449 of 2020 the grievance of rnt as well as the trustees of the two trusts is as regards the injunctive order of the appellate tribunal restraining them from taking any decision the grievance of the three operating companies which have filed 6 civil appeals is that 4 cpm has been directed to be reinstated as director of these companies by the impugned order for the rest of the tenure 1 4 the original complainants before the national company law tribunal nclt for short who initiated the proceedings under sections 241 and 242 of the companies act 2013 namely i cyrus investments private limited ii sterling investment corporation private limited have come up with a cross appeal in civil appeal no 1802 of 2020 their grievance is that in addition to the reliefs already granted the nclat ought to have also granted a direction to provide them proportionate representation on the board of directors of tata sons limited and in all committees formed by the board of directors they have one more grievance namely that the appellate tribunal ought to have deleted the requirement of an affirmative vote in the hands of select directors under article 121 or at least ought to have restricted the affirmative vote to matters covered by article 121a 5 1 5 in addition to c a nos 13 and 14 of 2020 tata sons have also come up with 2 more appeals in c a nos 263 and 264 of 2020 these appeals arise out of an order passed by nclat on 06 01 2020 in two interlocutory applications filed by the registrar of companies mumbai seeking amendment of the final order passed by nclat in the main appeals the reason why the registrar of companies was constrained to file 2 interlocutory applications in the disposed of appeals was that in the final order passed on 18 12 2019 by nclat in the 2 company appeals there were some remarks against the registrar of companies for having issued an amended certificate of incorporation to tata sons by striking off the word public and inserting the word private nclat dismissed these 2 applications by an order dated 06 01 2020 not merely holding that there were no adverse remarks against the registrar of companies but also giving additional reasons to justify its findings in the disposed of appeals in the purported exercise of the power available under section 420 of the companies act 2013 therefore 6 tata sons have come up with these 2 appeals in c a nos 263 and 264 of 2020 1 6 thus we have on hand 15 civil appeals 14 of which are on one side assailing the order of nclat in entirety the remaining appeal is filed by the opposite group seeking more reliefs than what had been granted by the tribunal 1 7 for the purpose of easy appreciation we shall refer to the appellants in the set of 14 civil appeals as the tata group or the appellants we shall refer to the other group as sp group shapoorji pallonji group or the respondents similarly we shall refer to tata sons limited or tata sons private limited merely as tata sons as there is a controversy regarding the usage of the word private before the word limited 2 background of the litigation 2 1 on 08 11 1917 tata sons was incorporated as a private limited company under the companies act 1913 7 2 2 two companies by name cyrus investments private limited and sterling investment corporation private limited forming part of the sp group respectively acquired 48 preference shares and 40 equity shares of the paid up share capital of tata sons from an existing member by name mrs rodabeh sawhney over the years the share holding of sp group in tata sons has grown to 18 37 of the total paid up share capital 2 3 the shareholding pattern of tata sons limited is as follows i shares held by two tata trusts 65 89 ii shares held by sp group 18 37 iii shares held by operating companies 12 87 total 97 13 the balance is held by rnt and a few others 2 4 from 25 06 1980 to 15 12 2004 shri pallonji s mistry the father of cpm was a non executive director on the board of tata sons on 10 08 2006 cpm was appointed as a non executive director on the board 8 2 5 by a resolution of the board of directors of tata sons dated 16 03 2012 cpm was appointed as executive deputy chairman for a period of five years from 01 04 2012 to 31 03 2017 subject however to the approval of the shareholders at a general meeting the general meeting gave its approval on 01 08 2012 2 6 by a resolution dated 18 12 2012 the board of directors of tata sons redesignated cpm as its executive chairman with effect from 29 12 2012 even while designating rnt as chairman emeritus 2 7 by a resolution passed on 24 10 2016 the board of directors of tata sons replaced cpm with rnt as the interim non executive chairman it is relevant to note that cpm was replaced only from the post of executive chairman and it was left to his choice to continue or not as non executive director of tata sons 2 8 as a follow up certain things happened and by separate resolutions passed at the meetings of the shareholders of tata industries limited tata consultancy services limited and tata 9 teleservices limited cpm was removed from directorship of those companies cpm then resigned from the directorship of a few other operating companies such as the indian hotels company limited tata steel limited tata motors limited tata chemicals limited and tata power company limited after coming to know of the impending resolutions to remove him from directorship 2 9 thereafter 2 companies by name cyrus investments private limited and sterling investment corporation private limited belonging to the sp group in which cpm holds a controlling interest filed a company petition in c p no 82 of 2016 before the national company law tribunal under sections 241 and 242 read with 244 of the companies act 2013 on the grounds of unfair prejudice oppression and mismanagement 2 10 but these two companies hereinafter referred to as the complainant companies together had only around 2 of the total issued share capital of tata sons this is far below the de minimus qualification prescribed under section 244 1 a to invoke sections 10 241 and 242 therefore the complainant companies filed a miscellaneous application under the proviso to sub section 1 of section 244 seeking waiver of the requirement of section 244 1 a which requires atleast one hundred members of the company having a share capital or one tenth of the total number of fixed members or any member or members holding not less than one tenth of the issued share capital of the company alone to be entitled to be the applicant applicants 2 11 along with the application for waiver of the requirement of section 244 1 a the complainant companies also moved an application for stay of an extra ordinary general meeting egm for short of tata sons in which a proposal for removing cpm as a director of tata sons had been moved the nclt refused stay as a consequence of which the egm proceeded as scheduled and cpm was removed from the directorship of tata sons by a resolution dated 16 02 2017 11 2 12 subsequently by an order dated 06 03 2017 nclt held the main company petition to be not maintainable at the instance of persons holding just around 2 of the issued share capital this was followed by another order dated 17 4 2017 by which nclt dismissed the application for waiver 2 13 the complainant companies filed appeals before nclat against both the orders dated 06 03 2017 and 17 04 2017 these appeals were allowed on 21 09 2017 granting waiver of the requirement of section 244 1 a and remanding the matter back to nclt for disposal on merits tata group did not challenge this order 2 14 thereafter nclt heard the company petition on merits and dismissed the same by an order dated 09 07 2018 2 15 challenging the order of the nclt the two complainant companies filed one appeal cpm filed another appeal both these appeals were allowed by the appellate tribunal by a final order dated 18 12 2019 granting the following reliefs 12 i the proceedings of the sixth meeting of the board of directors of tata sons limited held on monday 24th october 2016 so far as it relates to removal and other actions taken against mr cyrus pallonji mistry 11th respondent is declared illegal and is set aside in the result mr cyrus pallonji mistry 11th respondent is restored to his original position as executive chairman of tata sons limited and consequently as director of the tata companies for rest of the tenure as a sequel thereto the person who has been appointed as executive chairman in place of mr cyrus pallonji mistry 11th respondent his consequential appointment is declared illegal ii mr ratan n tata 2nd respondent and the nominee of the tata trusts shall desist from taking any decision in advance which requires majority decision of the board of directors or in the annual general meeting iii in view of prejudicial and oppressive decision taken during last few years the company its board of directors and shareholders which has not exercised its power under article 75 since inception will not exercise its power under article 75 against appellants and other minority member such power can be exercised only in exceptional circumstances and in the interest of the company but before exercising such power reasons should be recorded in writing and intimated to the concerned shareholders whose right will be affected iv the decision of the registrar of companies changing the company tata sons limited from public company to private company is declared illegal and set aside the company tata sons limited shall be recorded as public company the registrar of companies will make correction in its record showing the company tata sons limited as public company 13 2 16 after nclat disposed of the appeals by its order dated 18 12 2019 the registrar of companies moved 2 interlocutory applications seeking the deletion of certain remarks made by nclat against them these applications were dismissed by nclat by order dated 06 01 2020 therefore as against the final order of nclat dated 18 12 2019 i tata sons private limited ii rnt iii the trustees of the two tata trusts and iv three operating companies of tata group have come up with 2 civil appeals each totalling to 12 appeals and the complainant companies have come up with one civil appeal in addition tata sons have also come up with 2 more appeals against the order dated 06 01 2020 passed by nclat on the applications of the registrar of companies 3 case set up by the complainants in their petition under sections 241 and 242 companies act 2013 and reliefs sought 3 1 in the company petition as it was originally filed by s p group in december 2016 before the nclt the complainant companies claimed that the affairs of tata sons are carried out as 14 though it was a proprietary concern of rnt and that the oppressive conduct of the respondents was such that it would be just and equitable to wind up tata sons but such winding up would unfairly prejudice the interest of the petitioners and that therefore the tribunal should pass such orders so as to bring to an end the acts of oppression and mismanagement 3 2 the acts of oppression and mismanagement complained against tata sons revolved around i alleged abuse of the articles of association particularly articles 121 121a 86 104b and 118 to enable the trusts and its nominee directors to exercise control over the board of directors ii alleged illegal removal of cpm as executive chairman without any notice and an all out attempt to remove him from the directorship of all the operating companies of the tata group iii alleged dubious transactions in relation to tata teleservices limited alongwith one mr c sivasankaran iv rnt allegedly treating tata sons as a proprietorship concern with all others acting as puppets resulting in the board of directors failing 15 the test of fairness and probity v acquisition of corus group plc of uk at an inflated price and then jeopardising the talks for its merger with thyssen krupp vi nano car project becoming a disaster with losses accumulating year after year and the conflict of interest that rnt had in the supply of nano gliders to a company where he had stakes vii providing corporate guarantee to il fs trust company for the loan sanctioned by standard chartered bank to sterling viii making kalimati investments ltd a subsidiary of tata steel to provide an inter corporate bridge loan to sterling ix the dealings with ntt docomo and sterling resulting in an arbitration award for a staggering amount x leaking information to siva of sterling that resulted in siva issuing legal notices to tata teleservices and tata sons xi rnt making a personal gain for himself through the sale of a flat owned by a tata group company to mehli mistry xii companies controlled by mehli mistry receiving favours due to the personal relationship that rnt 16 had with him and xiii fraudulent transactions in the deal with air asia which led to financing of terrorism 3 3 on the foundation of the above the complainant companies contended before nclt i that the directors of tata sons are not carrying out their fiduciary responsibilities for and on behalf of the shareholders but have become mere puppets controlled by rnt and the trustees of the two trusts ii that the powers contained in the articles of association are being exercised in a malafide manner prejudicial to the interest of the petitioners and to public interest iii that various operating decisions are taken either for emotional reasons or for pampering the ego of rnt iv that attempts are made to shield persons responsible for fraudulent transactions at air asia v that attempts are made to ensure that no legal action is initiated against siva who owes rs 694 crores vi that ratan tata enabled his associates to unjustly enrich themselves at the cost of tata sons and vii that the present directors of tata sons are not promoting the interests of 17 shareholders of tata sons and the interests of the shareholders of various operating companies of the tata group 3 4 in the light of the above pleadings and contentions the petitioners before the nclt sought a set of about 21 reliefs whose abridged version is as follows a supersede the existing board of directors of respondent no 1 and appoint an administrator b in the alternative to prayer a above appoint a retired supreme court judge as the non executive chairman of the board of directors of respondent no 1 and appoint such number of new independent directors c restrain the so called interim chairman i e respondent no 2 from attending any meeting of the board of directors d restrain respondent no 14 from interfering in the affairs of respondent no 1 e direct respondent no 1 not to issue any securities which results in dilution of the present paid up equity capital f direct the respondents not to remove respondent no 11 as a director from the board of respondent no 1 g restrain the respondents from making any changes to the articles of association of respondent no 1 h order an investigation into the role of the trustees of the tata trusts in the operations of respondent no 1 and or tata group companies and prohibit the trustees from interfering in the affairs of respondent no 1 and or tata group companies i appoint an independent auditor to conduct a forensic audit into transactions and dealings of respondent no 1 with particular regard to all transactions with c sivasankaran and his business entities and all transactions involving mr mehli mistry and his associated entities and such findings of the 18 audit and investigation should be referred to the serious fraud investigation office j appoint an inspector under applicable law to investigate into the breach of the sebi prohibition of insider trading regulations 2015 and or refer the findings of such investigation to the serious fraud investigation office of the ministry of corporate affairs government of india k direct respondent no 2 to pay respondent no 1 the amount of unjust enrichment that has accrued to respondent no 2 on account of surrender of the sub tenancy of the bakhtawar flat l appoint a forensic auditor to re investigate the transactions executed by airasia with entities in india and singapore and such findings of the audit should be referred by the hon ble tribunal to the serious fraud investigation office of the ministry of corporate affairs government of india m strike of articles numbered 86 104 b 118 121 and 121a in their entirety and in so far as article 124 of the articles of association of respondent no 1 is concerned the following portion of the said article which is offending and or repugnant should be deleted any committee empowered to decide on matters which otherwise the board is authorised to decide shall have as its member at least one director appointment pursuant to article 104b the provisions relating to quorum and the manner in which matters will be decided contained in articles 115 and 121 respectively shall apply mutatis mutandis to the proceedings of the committee from the articles of association of respondent no 1 and substitute these articles with such articles as the nature and circumstances of this case may require n direct the respondents excluding respondent nos 4 10 11 to bring back into respondent no 1 the funds used by respondent no 1 for acquiring shares of tata motors o restrain respondent no 1 from initiating any new line of business or acquiring any new business p restrain the trustees of the trusts from interfering in the affairs of respondent no 1 and in the various companies q restrain the existing selection committee from acting any further 19 r direct that no candidate selected by the selection committee constituted pursuant to article 118 of the articles of association of respondent no 1 to be appointed without leave of this hon ble tribunal s direct respondent no 1 not to demand and or procure any unpublished price sensitive information from any listed operating companies within the tata group t grant interim and ad interim reliefs in terms of prayers a to s above and u pass such further orders that this hon ble tribunal may deem necessary for bringing an end to the acts of oppression and mismanagement in the running of respondent no 1 4 amendment of pleadings addition and deletion of reliefs 4 1 the contents of chapter 3 above are the pleadings made and the reliefs sought in the company petition as it was originally filed on 20 12 2016 but the pleadings and the prayers underwent certain changes in the course of the proceedings partly due to subsequent developments and partly due to change of strategy better counsel 4 2 what is important to note here is that some of the changes to the pleadings and the reliefs sought were by way of proper applications for amendment and some others were just by way of additional affidavits we shall advert to them in this part 20 4 3 the company petition filed on 20 12 2016 was taken up on 22 12 2016 and the nclt passed an order to the following effect it has also been further agreed by all the parties more specially by the petitioner counsel or r 11 counsel and the counsel on behalf of the answering respondents that they will not file any interim application or initiate any action or proceedings over this subject matter pending disposal of this company petition 4 4 soon the matter got precipitated claiming that cpm sent four box files containing several documents relating to tata education trust to the deputy commissioner of income tax with a view to create trouble a special notice was issued for convening the egm of tata sons on 06 02 2017 for considering the proposal for the removal of cpm as a director of tata sons 4 5 therefore the complainant companies moved a contempt application the said application was disposed of by nclt by an order dated 18 01 2017 permitting the complainant companies and cpm to file an additional affidavit limiting to the proposal for the removal of cyrus pallonji mistry from the board 21 4 6 accordingly an additional affidavit was filed on 21 01 2017 however the nclt by an order dated 31 01 2017 rejected the prayer of s p group for stay of egm scheduled to be held on 06 02 2017 4 7 s p group filed an appeal against the order refusing the stay of egm the appeal was disposed of on 03 02 2017 merely permitting the s p group to file a petition for amendment in the event of cpm being removed in the egm in the egm held on 06 02 2017 cpm was removed 4 8 therefore the complainant companies filed an amendment application dated 10 02 2017 seeking addition of two more prayers namely i to direct the respondents to reinstate the representative of the complainant companies on the board of tata sons and ii to direct the amendment of articles of association of tata sons to provide for proportional representation of shareholders on the board of directors of tata sons 22 4 9 but the petition for contempt the petition for interim stay of egm and the application for amendment to include additional prayers all turned out to be exercises in futility with the nclt passing two orders one on 06 03 2017 and another on 17 04 2017 by the first order dated 06 03 2017 nclt held the company petition to be not maintainable on the ground that the two complainant companies did not hold at least 10 of the issued share capital of tata sons by the second order dated 17 04 2017 nclt rejected the application for grant of waiver filed under the proviso to sub section 1 of section 244 4 10 but the aforesaid orders of nclt dated 06 03 2017 and 17 04 2017 were reversed by nclat by an order dated 21 09 2017 and the matter was remanded back to nclt 4 11 thereafter the complainant companies filed one additional affidavit one application for amendment one application for stay and one memo giving up some of the reliefs already sought 23 the facts relating to these can be compressed into a tabular column as follows sl no what was filed reliefs sought 1 additional affidavit dated this additional affidavit sought to 31 10 2017 challenge the conversion of tata sons from being a public limited company into a private limited company 2 application for amendment by this application the complainants dated 31 10 2017 sought the following prayers m 1 set aside the resolution passed by the shareholders of respondent no 1 on september 21 2017 insofar as it seeks to amend the articles of associations and memorandum of association of respondent no 1 for conversion of respondent no 1 into a private company m 2 strike off delete article 75 as the same is a tool in the hands of the majority shareholders to oppress the minority and m 3 pending the final hearing disposal of the company petition the effect and operation of the resolution dated september 21 2017 be stayed f 1 direct respondent no 1 and or respondent no 2 to 10 and 12 to 22 to reinstate a representative of the petitioners on the board of respondent no 1 g 1 direct that the articles of 24 association of respondent no 1 be amended to provide for proportionate representation of shareholders on the board of directors of respondent no 1 3 application for stay dated through this application the 31 10 2017 complainants sought stay of conversion of tata sons into a private limited company 4 memo dated 12 01 2018 by this memo certain reliefs originally sought were given up certain reliefs originally prayed for were not pressed and one particular relief was sought to be restricted the prayer in the memo was as follows a prayer m which sought the striking of articles 86 104 b 118 121 and 121a and striking of a portion of article 124 is restricted as under i the necessity of an affirmative vote of the majority of directors nominated by the trusts which are majority of shareholders be deleted ii the petitioners be entitled to proportionate representation on board of directors of respondent no 1 iii the petitioners be entitled to representation on all committees formed by the 25 board of directors of respondent no 1 and iv the articles of association be amended accordingly b prayers a b and c were not pressed c prayers f q and r being infructuous were not pressed 5 response of tata sons to the allegations made in the company petition 5 1 tata sons filed a reply to the company petition contending inter alia i that cpm who was removed from the post of executive chairman after having lost the confidence of 7 out of 9 directors has sought to use the complainant companies to besmirch the reputation of tata group ii that even the decisions to which cpm was a party have been questioned in the petition iii that tata group founded in 1868 is a global enterprise headquartered in india comprising over a hundred operating companies having presence in more than 100 countries across six continents collectively employing over 6 60 000 people iv that the 26 revenue of tata group in 2015 16 was 103 51 billion v that there are 29 publicly listed companies in the tata group with a combined market capitalisation of about 116 41 billion vi that 65 3 of the issued ordinary share capital of tata sons is held by philanthropic trusts which support education health livelihood generation and art and culture vii that it was at the instance of cpm that rnt was designated as chairman emeritus and he was requested to attend board meetings as a special and permanent invitee and continue to guide the board viii that articles 104b and 121 were introduced through a new version of articles of association at the annual general meeting of tata sons held on 13 09 2000 and article 121 was subsequently amended by resolution dated 09 04 2014 ix that shri pallonji shapoorji mistry who represented the complainant companies was present at the general meeting held on 13 09 2000 x that cpm himself was a party to the resolution passed by the shareholders on 09 04 2014 introducing articles 121a and 121b xi that cpm s 27 leadership gave rise to certain issues such as insufficient detail and discipline on capital allocation decisions slow execution on identified problems lack of specificity and follow through in strategic plan and business plan failure to take meaningful steps to enter new growth businesses weak top management team and reluctance to embrace the articles of association that spelt out the governance structure of the company and the rights of tata trusts xii that there was a growing trust deficit between the board of directors of tata sons and cpm due to several reasons such as the conflict of interest in the matter of award of contracts to s p group of companies and his systematic and planned reduction of the representation of tata sons directors on the boards of other major tata companies xiii that even when the directors of tata sons resolved on 24 10 2016 to replace cpm as executive chairman the board agreed to his continuance as a director of tata sons xiv that however cpm addressed a vitriolic mail on 25 10 2016 to the directors making false allegations xv that though the mail 28 was marked confidential it was simultaneously leaked to the press xvi that cpm also breached his fiduciary and contractual duties by disclosing confidential information and documents pertaining to tata sons to third parties xvii that cpm made representations to the shareholders of all operating companies with unsubstantiated and false allegations thereby attempting to make the operating companies vulnerable to make confidential data available for public inspection xviii that the shareholders of tata industries limited tata consultancy services and tata teleservices limited passed resolutions respectively on 12 12 2016 13 12 2016 and 14 12 2016 to remove cpm from directorship xix that therefore cpm resigned from the directorship of the other companies also on 19 12 2016 when he faced the prospect of being removed in the impending meetings xx that the actions and conduct of cpm after 24 10 2016 compelled tata sons to issue a special notice and requisition for his removal from the directorship of tata sons xxi that the company petition was not about espousing the cause of 29 corporate governance or seeking remedies for oppression and mismanagement of tata sons xxii that prior to his removal as executive chairman cpm never raised any concerns regarding any oppression or mismanagement xxiii that many of the acts of oppression complained of by the complainant companies have happened long before the date of filing of the company petition showing thereby that the company petition was hopelessly barred by delay and laches 5 2 on the allegations of oppression and mismanagement the response of tata sons was as follows i that the complainant companies have cherry picked certain business decisions to launch a vitriolic attack on the tata trusts ii that while the complainant companies have talked about bad business deals such as corus acquisition and nano project they have deliberately omitted to talk about tetley acquisition by tata global beverages limited the immensely successful jaguar land rover acquisition by tata motors and the phenomenal success of tata consultancy services 30 iii that corus acquisition the nano project contracts awarded to the business concerns of mr mehli mistry and the investment by mr c sivasankaran have surfaced only after the replacement of mr cyrus mistry as the executive chairman iv that cpm has been the director of tata sons since the year 2006 and was also the executive chairman from december 2012 to october 2016 and was fully aware of how the decisions relating to these projects were taken when they were taken v that courts cannot be called upon to sit in judgment over the commercial decisions of the board of directors of companies and vi that even commercial mis judgments of the board of directors cannot be branded as instances of oppression and mis management 5 3 on specific acts of oppression and mismanagement raised in the company petition such as i over priced and bleeding acquisition of corus plc of uk ii doomed nano car project iii loan advanced by kalimati investments to siva iv sale of the 31 residential flat to mehli mistry v unjust enrichment of mehli mistry and the companies controlled by him due to the personal equation of rnt with him vi aviation industry misadventures and vii a huge loss due to purchase of shares of tata motors the reply filed by tata sons contained an elaborate and graphic rebuttal we shall take note of them later while dealing with the question whether or not the allegations constitute the ingredients of sections 241 and 242 of the act 6 the approach of nclt 6 1 the nclt in its order dated 9 7 2018 went into each of the allegations of oppression mismanagement and prejudice and recorded categorical findings in brief these findings allegation wise were as follows on the allegations revolving around siva and sterling group of companies 32 i tata teleservices shares were acquired in the year 2006 with the approval of the board and hence almost after 10 years it cannot be raised as an issue it is also a fact that the very complainant companies had acquired same ttsl shares two months before for rs 15 per share ii the loan taken from kalimati investments was already paid back by siva group of companies and the company was relieved of its undertaking by siva himself who provided personal guarantee for the loan taken from standard chartered bank iii as to the allegation that siva made a big profit by selling shares to ntt docomo rs 117 per share it is evident from the record that these shares were sold in the year 2008 to ntt docomo while ntt docomo was acquiring shares in bulk from ttsl as well as from some of the shareholders of ttsl including the brother and father of cpm and also from siva they also equally gained benefit just as siva group gained from selling shares of ttsl to ntt 33 docomo but this was not disclosed by the complainant companies either in their petition or in their rejoinder the rate at which the petitioners acquired shares of ttsl is less than the rate at which siva group acquired and the gain that the petitioners made by selling shares to ntt docomo was more than the gain siva group got from selling shares to ntt docomo iv no material has been placed either by the petitioner or by cpm to show that any information was leaked to siva group either by rnt or by anyone else v docomo issue cropped up in 2016 when the award was passed for payment of rs 8450 crores the letter around which a controversy is raised was written by rnt in the year 2013 hence that letter cannot be linked to docomo issue to show as if rnt was encouraging mr siva not to pay money to the company on the allegations relating to air asia 34 i air asia india pvt ltd is a joint venture between air asia berhad malaysian company and tata sons incorporated on 28 03 2013 the allegations relating to this are mostly based on the emails sent by one mr bharat vasani who is not a party to this proceeding and hence these allegations could not be put to test ii in the meeting held on 06 12 2012 cpm did not raise any objection to the approval of the joint venture or for infusing funds in air asia india until he was removed as chairman of the company iii in their desperate attempt to make a case out of nothing the complainant companies claim on the one hand that cpm had no say in the air asia transaction but on the other hand they claim that cpm protected the interest of the company by limiting its exposure to 30 equity of usd 30 million and by ensuring that no fall back liability came on the company 35 iv a person privy to a transaction is estopped from questioning it but the complainant companies and cpm have made all kinds of allegations with impunity flouting all legal principles they have proceeded as though they did not take active part in the air asia incorporation and as though cpm did not preside over the meeting on 15 09 2016 for further funding it in addition they have made a scurrilous statement without a shred of paper that rnt funded one terrorist through hawala with diversion of air asia india funds on the transactions with mehli mistry including the sale of the flat bhakthawar and a land alibaug i there is nothing to indicate that rnt got enriched at the cost of the company forbes golak was not made a party 36 and the transaction happened somewhere in the year 2002 but the allegation is raised in the year 2016 ii as to these allegations relating to mehli deriving huge benefits the only document that the petitioners and cpm filed and relied on is an email mr mehli addressed to mr padmanabhan of tpc among others iii in respect of the 1993 contract for dredging at trombay it was awarded by tata power to mpcl for 9 years after choosing them from amongst three vendors thereafter it was renewed 5 times for various tenures from october 2002 to september 2014 after obtaining requisite approvals when these approvals were given cpm was a director of tata power he held directorship from 1996 to 2006 and again from 2011 to 2016 but never raised any objection nano car project and the losses suffered by tata motors i rnt has not been the director of tata motors at any point of time during which the actions complained of happened 37 ii tata motors and jayem incorporated a joint venture company by name j t special vehicle pvt ltd with 50 50 shareholdings in july 2016 this joint venture was incorporated under the stewardship of cpm himself it is therefore entirely incorrect to say that jayem has benefited unduly from any patronage extended by rnt acquisition of corus i the acquisition of corus was a collective decision of tata steel and it was approved by cpm as a director of the board of tata steel this entire acquisition was undertaken following the due governance process under the supervision of the board of directors of tata steel without any dissent from any of the shareholders of tata steel ii tata steel did not buy it for an inflated price but it so happened that tata steel took a unanimous decision to quote a price of gbp 608 pence per share while their competitor csn s final bid was gbp 603 pence per share 38 cpm or the complainant companies have not placed any letter or email seeking divesting or restructuring of corus private company vs public company i on the impact of section 43a 2a of the companies act 1956 and the issue of the amended certificate of incorporation to tata sons it has to be seen that tata sons had not altered any of the articles of association so as to bring any new entrenchment to the articles and that the management had not done anything so as to cause prejudice to the rights of the minority shareholders on the contention that a few articles were oppressive or that they were abused i the contention that articles 104b 121 121a and 75 of the articles of association were per se oppressive and that they have been used as tools of oppression and mismanagement is unacceptable since cpm s father was party to the amendments made to the articles of association on 13 09 2000 the amendment of article 118 was passed on 39 06 12 2012 when cpm was the executive deputy chairman cpm was also party to the resolutions passed on 09 04 2014 in which the articles were amended so as to confer affirmative rights in favour of the directors of the trusts in so far as article 75 is concerned it was in existence throughout and hence the question whether persons who acquired shares of such a company consciously despite the presence of article 75 can turn around later and project them as oppressive looms large ii the fact that the nominee directors stepped out of the meeting of the board held on 29 06 2016 to take instructions from rnt on the issue of acquisition of welspun by tata power cannot be projected as an incident where article 121 was abused since the issue of acquisition of welspun should have come up before the board of tata sons even prior to tata power taking a decision in view of article 121a h since tata power had already signed the papers for the acquisition of welspun on 12 06 2016 itself 40 cpm really made the directors of tata sons as fait accompli therefore it was the action of cpm that was prejudicial to the interests of tata sons and not the other way around iii none of the articles have ever been opposed either by the complainant companies or by cpm at any point of time in the past and article 75 has been in place even before the complainant companies acquired shares allegation of breach of fiduciary duties by the directors i in support of their allegation that there was breach of fiduciary duties by the trust nominee directors and to prove that the directors of the company were guilty of dereliction of duties in the teeth of sections 149 and 166 of the companies act 2013 read with schedule iv code for independent directors the complainant companies had not placed any material other than the minutes of the meeting held on 24 10 2016 in which cpm was removed from chairmanship also the removal of cpm as executive 41 chairman was not in deprivation of any of the rights of the complainant companies as shareholders and his removal had nothing to do with his association with the complainant companies the removal of cpm as executive chairman cannot be projected as oppression of minority shareholders merely because he also happens to have controlling interest in companies that hold around 18 40 shareholding in the company ii the provision in the articles of association entitling the two trusts to have 1 3rd of the directors on the board of tata sons with an affirmative vote was actually a curtailment of their right to appoint majority of the directors to the board and hence it cannot be construed as oppressive of the minority on the removal of cpm 42 i the removal of cpm as executive chairman of tata sons on 24 10 2016 and his removal as director on 06 02 2017 were on account of trust deficit and there was no question of a selection committee going into the issue of his removal ii there was no material to hold that cpm was removed on account of purported legacy issues cpm created a situation where he is not accountable either to the majority shareholders or to the trust nominee directors and hence his removal iii the letter dated 25 10 2016 issued by cpm could not have been leaked to the media by anyone other than cpm and hence his removal from directorship on 06 02 2017 became inevitable 6 2 what we have provided in the preceding paragraph is an abridged version of the findings recorded by nclt on every one of the allegations contained in the main company petition apart from those findings recorded in the body of the judgment nclt itself 43 gave a summary of findings in paragraph 581 of its decision it is extracted verbatim as follows a removal of mr cyrus mistry as executive chairman on 24 10 2016 is because the board of directors and majority of shareholders i e tata trusts lost confidence in mr cyrus as chairman not because by contemplating that mr cyrus would cause discomfort to mr tata mr soonawala and other answering respondents over purported legacy issues board of directors are competent to remove executive chairman no selection committee recommendation is required before removing him as executive chairman b removal of mr cyrus mistry from the position of director is because he admittedly sent the company information to income tax authorities leaked the company information to media and openly come out against the board and the trusts which hardly augurs well for smooth functioning of the company and we have not found any merit to believe that his removal as director falls within the ambit of section 241 of companies act 2013 44 c we have not found any merit to hold that proportional representation on board proportionate to the shareholding of the petitioners is possible so long as articles do not have such mandate as envisaged under section 163 of companies act 2013 d we have not found any merit in purported legacy issues such as siva issue ttsl issue nano car issue corus issue mr mehli issue and air asia issue to state that those issues fall within the ambit of section 247 and 242 of companies act 2013 e we also have not found any merit to say that the company filing application under section 14 of companies act 2013 asking this tribunal to make it from public to private falls for consideration under the jurisdiction of section 247 242 of companies act 2013 f we have also found no merit in saying that mr tata mr soonawala giving advices and suggestions amounted to interference in administering the affairs of the company so that to consider their conduct as prejudicial to the interest of the company under section 241 of companies act 2013 45 g we have found no merit in the argument that mr tata and mr soonawala acted as shadow directors superimposing their wish upon the company so that action to be taken under section 241 242 of companies act 2013 h we have not found any merit in the argument that articles 75 104b 118 121 of the articles of association per se oppressive against the petitioners i we have not found any merit in the argument that majority rule has taken back seat by introduction of corporate governance in companies act 2013 it is like corporate democracy is genesis and corporate governance is species they are never in conflict with each other the management is rather more accountable to the shareholders under the present regime corporate governance is collective responsibility not based on assumed free hand rule which is alien to the concept of collective responsibility endowed upon the board j we have observed that prejudice remedy has been included in 2013 act in addition to oppressive remedy already there and also included application of just and equitable ground as precondition to pass any relief in 46 mismanagement issues which was not the case under old act 7 the approach of nclat 7 1 while nclt dealt with every one of the allegations contained in the main company petition and recorded its findings nclat curiously focused attention only on i the removal of cpm ii the affirmative voting rights of the directors nominated by the 2 trusts in the decision making process and iii the amended certificate of incorporation issued by the roc deleting the word public and making it a private company once again 7 2 the findings recorded by nclat are presented to a great extent in the language of nclat itself as follows 47 i the word unfairly prejudicial has not been used in section 241 the indian law sections 241 242 of the companies act 2013 does not recognize the term legitimate expectation to hold any act prejudicial or oppressive paragraphs 101 and 102 of the impugned order ii in the general meeting of the shareholders of tata sons limited or the board of directors the majority decision is fully dependent upon the affirmative votes of nominated directors of tata trusts the affirmative vote of the directors nominated by tata trusts has an overriding effect and renders the majority decision subservient to it paragraph 115 of the impugned order iii the tribunal appellate tribunal has no jurisdiction to hold any of the articles as illegal or arbitrary the terms and conditions being agreed upon by the shareholders however if any action is taken even in accordance with law which is prejudicial or oppressive to any member or members or 48 prejudicial to the company or prejudicial to the public interest the tribunal can notice whether the facts would justify the winding up of the company and in such case if the tribunal holds that it would unfairly prejudice member or members or public interest or interest of the company it may pass appropriate orders in terms of section 242 paragraph 119 of the impugned order iv the email correspondence dated 18 07 2013 28 02 2014 11 03 2015 28 05 2015 03 11 2015 etc would show that cpm was unaware and not in a position to understand how decisions are taken by the tata trusts before the decision of the board of directors of tata sons and that cpm felt the need for development of a governance framework paragraph 126 of the impugned order v emails dated 13th march 2016 30th april 2016 and 10th may 2016 between cpm and mr nitin nohria show that cpm formulated a governance framework after obtaining the 49 feedback from mr nitin nohria to clarify the role of the trustees of tata trusts in the decision making process of tata sons limited it was followed by e mail dated 15th may 2016 sent by cpm to rnt forwarding a draft of the governance framework paragraph 127 of the impugn truncated 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal nos 440 441 0f 2020 tata consultancy services limited appellant s versus cyrus investments pvt ltd and ors respondent s with civil appeal nos 13 14 0f 2020 civil appeal nos 442 443 0f 2020 civil appeal nos 19 20 0f 2020 civil appeal nos 444 445 0f 2020 civil appeal nos 448 449 0f 2020 civil appeal nos 263 264 0f 2020 civil appeal no 1802 0f 2020 j u d g m e n t 1 lis in the appeals 1 1 tata sons private limited has come up with two appeals in civil appeal nos 13 14 of 2020 challenging a final order dated 18 12 2019 passed by the national company law appellate tribunal nclat for short i holding as illegal the proceedings of 2 the sixth meeting of the board of directors of tata sons limited held on 24 10 2016 in so far as it relates to the removal of shri cyrus pallonji mistry cpm for short ii restoring the position of cpm as the executive chairman of tata sons limited and consequently as a director of the tata companies for the rest of the tenure iii declaring as illegal the appointment of someone else in the place of cpm as executive chairman iv restraining shri ratan n tata rnt for short and the nominees of tata trust from taking any decision in advance v restraining the company its board of directors and shareholders from exercising the power under article 75 of the articles of association against the minority members except in exceptional circumstances and in the interest of the company and vi declaring as illegal the decision of the registrar of companies for changing the status of tata sons limited from being a public company into a private company 3 1 2 rnt has come up with two independent appeals in civil appeal nos 19 20 of 2020 against the same order of the nclat on similar grounds 1 3 the trustees of two trusts namely sir ratan tata trust and sir dorabji tata trust have come up with two independent appeals in civil appeal nos 444 445 of 2020 challenging the impugned order of the appellate tribunal a few companies of the tata group which were referred to in the course of arguments as the operating companies or downstream companies such as the tata consultancy services limited the tata teleservices limited and tata industries limited have come up with separate appeals in civil appeal nos 440 441 of 2020 442 443 of 2020 and 448 449 of 2020 the grievance of rnt as well as the trustees of the two trusts is as regards the injunctive order of the appellate tribunal restraining them from taking any decision the grievance of the three operating companies which have filed 6 civil appeals is that 4 cpm has been directed to be reinstated as director of these companies by the impugned order for the rest of the tenure 1 4 the original complainants before the national company law tribunal nclt for short who initiated the proceedings under sections 241 and 242 of the companies act 2013 namely i cyrus investments private limited ii sterling investment corporation private limited have come up with a cross appeal in civil appeal no 1802 of 2020 their grievance is that in addition to the reliefs already granted the nclat ought to have also granted a direction to provide them proportionate representation on the board of directors of tata sons limited and in all committees formed by the board of directors they have one more grievance namely that the appellate tribunal ought to have deleted the requirement of an affirmative vote in the hands of select directors under article 121 or at least ought to have restricted the affirmative vote to matters covered by article 121a 5 1 5 in addition to c a nos 13 and 14 of 2020 tata sons have also come up with 2 more appeals in c a nos 263 and 264 of 2020 these appeals arise out of an order passed by nclat on 06 01 2020 in two interlocutory applications filed by the registrar of companies mumbai seeking amendment of the final order passed by nclat in the main appeals the reason why the registrar of companies was constrained to file 2 interlocutory applications in the disposed of appeals was that in the final order passed on 18 12 2019 by nclat in the 2 company appeals there were some remarks against the registrar of companies for having issued an amended certificate of incorporation to tata sons by striking off the word public and inserting the word private nclat dismissed these 2 applications by an order dated 06 01 2020 not merely holding that there were no adverse remarks against the registrar of companies but also giving additional reasons to justify its findings in the disposed of appeals in the purported exercise of the power available under section 420 of the companies act 2013 therefore 6 tata sons have come up with these 2 appeals in c a nos 263 and 264 of 2020 1 6 thus we have on hand 15 civil appeals 14 of which are on one side assailing the order of nclat in entirety the remaining appeal is filed by the opposite group seeking more reliefs than what had been granted by the tribunal 1 7 for the purpose of easy appreciation we shall refer to the appellants in the set of 14 civil appeals as the tata group or the appellants we shall refer to the other group as sp group shapoorji pallonji group or the respondents similarly we shall refer to tata sons limited or tata sons private limited merely as tata sons as there is a controversy regarding the usage of the word private before the word limited 2 background of the litigation 2 1 on 08 11 1917 tata sons was incorporated as a private limited company under the companies act 1913 7 2 2 two companies by name cyrus investments private limited and sterling investment corporation private limited forming part of the sp group respectively acquired 48 preference shares and 40 equity shares of the paid up share capital of tata sons from an existing member by name mrs rodabeh sawhney over the years the share holding of sp group in tata sons has grown to 18 37 of the total paid up share capital 2 3 the shareholding pattern of tata sons limited is as follows i shares held by two tata trusts 65 89 ii shares held by sp group 18 37 iii shares held by operating companies 12 87 total 97 13 the balance is held by rnt and a few others 2 4 from 25 06 1980 to 15 12 2004 shri pallonji s mistry the father of cpm was a non executive director on the board of tata sons on 10 08 2006 cpm was appointed as a non executive director on the board 8 2 5 by a resolution of the board of directors of tata sons dated 16 03 2012 cpm was appointed as executive deputy chairman for a period of five years from 01 04 2012 to 31 03 2017 subject however to the approval of the shareholders at a general meeting the general meeting gave its approval on 01 08 2012 2 6 by a resolution dated 18 12 2012 the board of directors of tata sons redesignated cpm as its executive chairman with effect from 29 12 2012 even while designating rnt as chairman emeritus 2 7 by a resolution passed on 24 10 2016 the board of directors of tata sons replaced cpm with rnt as the interim non executive chairman it is relevant to note that cpm was replaced only from the post of executive chairman and it was left to his choice to continue or not as non executive director of tata sons 2 8 as a follow up certain things happened and by separate resolutions passed at the meetings of the shareholders of tata industries limited tata consultancy services limited and tata 9 teleservices limited cpm was removed from directorship of those companies cpm then resigned from the directorship of a few other operating companies such as the indian hotels company limited tata steel limited tata motors limited tata chemicals limited and tata power company limited after coming to know of the impending resolutions to remove him from directorship 2 9 thereafter 2 companies by name cyrus investments private limited and sterling investment corporation private limited belonging to the sp group in which cpm holds a controlling interest filed a company petition in c p no 82 of 2016 before the national company law tribunal under sections 241 and 242 read with 244 of the companies act 2013 on the grounds of unfair prejudice oppression and mismanagement 2 10 but these two companies hereinafter referred to as the complainant companies together had only around 2 of the total issued share capital of tata sons this is far below the de minimus qualification prescribed under section 244 1 a to invoke sections 10 241 and 242 therefore the complainant companies filed a miscellaneous application under the proviso to sub section 1 of section 244 seeking waiver of the requirement of section 244 1 a which requires atleast one hundred members of the company having a share capital or one tenth of the total number of fixed members or any member or members holding not less than one tenth of the issued share capital of the company alone to be entitled to be the applicant applicants 2 11 along with the application for waiver of the requirement of section 244 1 a the complainant companies also moved an application for stay of an extra ordinary general meeting egm for short of tata sons in which a proposal for removing cpm as a director of tata sons had been moved the nclt refused stay as a consequence of which the egm proceeded as scheduled and cpm was removed from the directorship of tata sons by a resolution dated 16 02 2017 11 2 12 subsequently by an order dated 06 03 2017 nclt held the main company petition to be not maintainable at the instance of persons holding just around 2 of the issued share capital this was followed by another order dated 17 4 2017 by which nclt dismissed the application for waiver 2 13 the complainant companies filed appeals before nclat against both the orders dated 06 03 2017 and 17 04 2017 these appeals were allowed on 21 09 2017 granting waiver of the requirement of section 244 1 a and remanding the matter back to nclt for disposal on merits tata group did not challenge this order 2 14 thereafter nclt heard the company petition on merits and dismissed the same by an order dated 09 07 2018 2 15 challenging the order of the nclt the two complainant companies filed one appeal cpm filed another appeal both these appeals were allowed by the appellate tribunal by a final order dated 18 12 2019 granting the following reliefs 12 i the proceedings of the sixth meeting of the board of directors of tata sons limited held on monday 24th october 2016 so far as it relates to removal and other actions taken against mr cyrus pallonji mistry 11th respondent is declared illegal and is set aside in the result mr cyrus pallonji mistry 11th respondent is restored to his original position as executive chairman of tata sons limited and consequently as director of the tata companies for rest of the tenure as a sequel thereto the person who has been appointed as executive chairman in place of mr cyrus pallonji mistry 11th respondent his consequential appointment is declared illegal ii mr ratan n tata 2nd respondent and the nominee of the tata trusts shall desist from taking any decision in advance which requires majority decision of the board of directors or in the annual general meeting iii in view of prejudicial and oppressive decision taken during last few years the company its board of directors and shareholders which has not exercised its power under article 75 since inception will not exercise its power under article 75 against appellants and other minority member such power can be exercised only in exceptional circumstances and in the interest of the company but before exercising such power reasons should be recorded in writing and intimated to the concerned shareholders whose right will be affected iv the decision of the registrar of companies changing the company tata sons limited from public company to private company is declared illegal and set aside the company tata sons limited shall be recorded as public company the registrar of companies will make correction in its record showing the company tata sons limited as public company 13 2 16 after nclat disposed of the appeals by its order dated 18 12 2019 the registrar of companies moved 2 interlocutory applications seeking the deletion of certain remarks made by nclat against them these applications were dismissed by nclat by order dated 06 01 2020 therefore as against the final order of nclat dated 18 12 2019 i tata sons private limited ii rnt iii the trustees of the two tata trusts and iv three operating companies of tata group have come up with 2 civil appeals each totalling to 12 appeals and the complainant companies have come up with one civil appeal in addition tata sons have also come up with 2 more appeals against the order dated 06 01 2020 passed by nclat on the applications of the registrar of companies 3 case set up by the complainants in their petition under sections 241 and 242 companies act 2013 and reliefs sought 3 1 in the company petition as it was originally filed by s p group in december 2016 before the nclt the complainant companies claimed that the affairs of tata sons are carried out as 14 though it was a proprietary concern of rnt and that the oppressive conduct of the respondents was such that it would be just and equitable to wind up tata sons but such winding up would unfairly prejudice the interest of the petitioners and that therefore the tribunal should pass such orders so as to bring to an end the acts of oppression and mismanagement 3 2 the acts of oppression and mismanagement complained against tata sons revolved around i alleged abuse of the articles of association particularly articles 121 121a 86 104b and 118 to enable the trusts and its nominee directors to exercise control over the board of directors ii alleged illegal removal of cpm as executive chairman without any notice and an all out attempt to remove him from the directorship of all the operating companies of the tata group iii alleged dubious transactions in relation to tata teleservices limited alongwith one mr c sivasankaran iv rnt allegedly treating tata sons as a proprietorship concern with all others acting as puppets resulting in the board of directors failing 15 the test of fairness and probity v acquisition of corus group plc of uk at an inflated price and then jeopardising the talks for its merger with thyssen krupp vi nano car project becoming a disaster with losses accumulating year after year and the conflict of interest that rnt had in the supply of nano gliders to a company where he had stakes vii providing corporate guarantee to il fs trust company for the loan sanctioned by standard chartered bank to sterling viii making kalimati investments ltd a subsidiary of tata steel to provide an inter corporate bridge loan to sterling ix the dealings with ntt docomo and sterling resulting in an arbitration award for a staggering amount x leaking information to siva of sterling that resulted in siva issuing legal notices to tata teleservices and tata sons xi rnt making a personal gain for himself through the sale of a flat owned by a tata group company to mehli mistry xii companies controlled by mehli mistry receiving favours due to the personal relationship that rnt 16 had with him and xiii fraudulent transactions in the deal with air asia which led to financing of terrorism 3 3 on the foundation of the above the complainant companies contended before nclt i that the directors of tata sons are not carrying out their fiduciary responsibilities for and on behalf of the shareholders but have become mere puppets controlled by rnt and the trustees of the two trusts ii that the powers contained in the articles of association are being exercised in a malafide manner prejudicial to the interest of the petitioners and to public interest iii that various operating decisions are taken either for emotional reasons or for pampering the ego of rnt iv that attempts are made to shield persons responsible for fraudulent transactions at air asia v that attempts are made to ensure that no legal action is initiated against siva who owes rs 694 crores vi that ratan tata enabled his associates to unjustly enrich themselves at the cost of tata sons and vii that the present directors of tata sons are not promoting the interests of 17 shareholders of tata sons and the interests of the shareholders of various operating companies of the tata group 3 4 in the light of the above pleadings and contentions the petitioners before the nclt sought a set of about 21 reliefs whose abridged version is as follows a supersede the existing board of directors of respondent no 1 and appoint an administrator b in the alternative to prayer a above appoint a retired supreme court judge as the non executive chairman of the board of directors of respondent no 1 and appoint such number of new independent directors c restrain the so called interim chairman i e respondent no 2 from attending any meeting of the board of directors d restrain respondent no 14 from interfering in the affairs of respondent no 1 e direct respondent no 1 not to issue any securities which results in dilution of the present paid up equity capital f direct the respondents not to remove respondent no 11 as a director from the board of respondent no 1 g restrain the respondents from making any changes to the articles of association of respondent no 1 h order an investigation into the role of the trustees of the tata trusts in the operations of respondent no 1 and or tata group companies and prohibit the trustees from interfering in the affairs of respondent no 1 and or tata group companies i appoint an independent auditor to conduct a forensic audit into transactions and dealings of respondent no 1 with particular regard to all transactions with c sivasankaran and his business entities and all transactions involving mr mehli mistry and his associated entities and such findings of the 18 audit and investigation should be referred to the serious fraud investigation office j appoint an inspector under applicable law to investigate into the breach of the sebi prohibition of insider trading regulations 2015 and or refer the findings of such investigation to the serious fraud investigation office of the ministry of corporate affairs government of india k direct respondent no 2 to pay respondent no 1 the amount of unjust enrichment that has accrued to respondent no 2 on account of surrender of the sub tenancy of the bakhtawar flat l appoint a forensic auditor to re investigate the transactions executed by airasia with entities in india and singapore and such findings of the audit should be referred by the hon ble tribunal to the serious fraud investigation office of the ministry of corporate affairs government of india m strike of articles numbered 86 104 b 118 121 and 121a in their entirety and in so far as article 124 of the articles of association of respondent no 1 is concerned the following portion of the said article which is offending and or repugnant should be deleted any committee empowered to decide on matters which otherwise the board is authorised to decide shall have as its member at least one director appointment pursuant to article 104b the provisions relating to quorum and the manner in which matters will be decided contained in articles 115 and 121 respectively shall apply mutatis mutandis to the proceedings of the committee from the articles of association of respondent no 1 and substitute these articles with such articles as the nature and circumstances of this case may require n direct the respondents excluding respondent nos 4 10 11 to bring back into respondent no 1 the funds used by respondent no 1 for acquiring shares of tata motors o restrain respondent no 1 from initiating any new line of business or acquiring any new business p restrain the trustees of the trusts from interfering in the affairs of respondent no 1 and in the various companies q restrain the existing selection committee from acting any further 19 r direct that no candidate selected by the selection committee constituted pursuant to article 118 of the articles of association of respondent no 1 to be appointed without leave of this hon ble tribunal s direct respondent no 1 not to demand and or procure any unpublished price sensitive information from any listed operating companies within the tata group t grant interim and ad interim reliefs in terms of prayers a to s above and u pass such further orders that this hon ble tribunal may deem necessary for bringing an end to the acts of oppression and mismanagement in the running of respondent no 1 4 amendment of pleadings addition and deletion of reliefs 4 1 the contents of chapter 3 above are the pleadings made and the reliefs sought in the company petition as it was originally filed on 20 12 2016 but the pleadings and the prayers underwent certain changes in the course of the proceedings partly due to subsequent developments and partly due to change of strategy better counsel 4 2 what is important to note here is that some of the changes to the pleadings and the reliefs sought were by way of proper applications for amendment and some others were just by way of additional affidavits we shall advert to them in this part 20 4 3 the company petition filed on 20 12 2016 was taken up on 22 12 2016 and the nclt passed an order to the following effect it has also been further agreed by all the parties more specially by the petitioner counsel or r 11 counsel and the counsel on behalf of the answering respondents that they will not file any interim application or initiate any action or proceedings over this subject matter pending disposal of this company petition 4 4 soon the matter got precipitated claiming that cpm sent four box files containing several documents relating to tata education trust to the deputy commissioner of income tax with a view to create trouble a special notice was issued for convening the egm of tata sons on 06 02 2017 for considering the proposal for the removal of cpm as a director of tata sons 4 5 therefore the complainant companies moved a contempt application the said application was disposed of by nclt by an order dated 18 01 2017 permitting the complainant companies and cpm to file an additional affidavit limiting to the proposal for the removal of cyrus pallonji mistry from the board 21 4 6 accordingly an additional affidavit was filed on 21 01 2017 however the nclt by an order dated 31 01 2017 rejected the prayer of s p group for stay of egm scheduled to be held on 06 02 2017 4 7 s p group filed an appeal against the order refusing the stay of egm the appeal was disposed of on 03 02 2017 merely permitting the s p group to file a petition for amendment in the event of cpm being removed in the egm in the egm held on 06 02 2017 cpm was removed 4 8 therefore the complainant companies filed an amendment application dated 10 02 2017 seeking addition of two more prayers namely i to direct the respondents to reinstate the representative of the complainant companies on the board of tata sons and ii to direct the amendment of articles of association of tata sons to provide for proportional representation of shareholders on the board of directors of tata sons 22 4 9 but the petition for contempt the petition for interim stay of egm and the application for amendment to include additional prayers all turned out to be exercises in futility with the nclt passing two orders one on 06 03 2017 and another on 17 04 2017 by the first order dated 06 03 2017 nclt held the company petition to be not maintainable on the ground that the two complainant companies did not hold at least 10 of the issued share capital of tata sons by the second order dated 17 04 2017 nclt rejected the application for grant of waiver filed under the proviso to sub section 1 of section 244 4 10 but the aforesaid orders of nclt dated 06 03 2017 and 17 04 2017 were reversed by nclat by an order dated 21 09 2017 and the matter was remanded back to nclt 4 11 thereafter the complainant companies filed one additional affidavit one application for amendment one application for stay and one memo giving up some of the reliefs already sought 23 the facts relating to these can be compressed into a tabular column as follows sl no what was filed reliefs sought 1 additional affidavit dated this additional affidavit sought to 31 10 2017 challenge the conversion of tata sons from being a public limited company into a private limited company 2 application for amendment by this application the complainants dated 31 10 2017 sought the following prayers m 1 set aside the resolution passed by the shareholders of respondent no 1 on september 21 2017 insofar as it seeks to amend the articles of associations and memorandum of association of respondent no 1 for conversion of respondent no 1 into a private company m 2 strike off delete article 75 as the same is a tool in the hands of the majority shareholders to oppress the minority and m 3 pending the final hearing disposal of the company petition the effect and operation of the resolution dated september 21 2017 be stayed f 1 direct respondent no 1 and or respondent no 2 to 10 and 12 to 22 to reinstate a representative of the petitioners on the board of respondent no 1 g 1 direct that the articles of 24 association of respondent no 1 be amended to provide for proportionate representation of shareholders on the board of directors of respondent no 1 3 application for stay dated through this application the 31 10 2017 complainants sought stay of conversion of tata sons into a private limited company 4 memo dated 12 01 2018 by this memo certain reliefs originally sought were given up certain reliefs originally prayed for were not pressed and one particular relief was sought to be restricted the prayer in the memo was as follows a prayer m which sought the striking of articles 86 104 b 118 121 and 121a and striking of a portion of article 124 is restricted as under i the necessity of an affirmative vote of the majority of directors nominated by the trusts which are majority of shareholders be deleted ii the petitioners be entitled to proportionate representation on board of directors of respondent no 1 iii the petitioners be entitled to representation on all committees formed by the 25 board of directors of respondent no 1 and iv the articles of association be amended accordingly b prayers a b and c were not pressed c prayers f q and r being infructuous were not pressed 5 response of tata sons to the allegations made in the company petition 5 1 tata sons filed a reply to the company petition contending inter alia i that cpm who was removed from the post of executive chairman after having lost the confidence of 7 out of 9 directors has sought to use the complainant companies to besmirch the reputation of tata group ii that even the decisions to which cpm was a party have been questioned in the petition iii that tata group founded in 1868 is a global enterprise headquartered in india comprising over a hundred operating companies having presence in more than 100 countries across six continents collectively employing over 6 60 000 people iv that the 26 revenue of tata group in 2015 16 was 103 51 billion v that there are 29 publicly listed companies in the tata group with a combined market capitalisation of about 116 41 billion vi that 65 3 of the issued ordinary share capital of tata sons is held by philanthropic trusts which support education health livelihood generation and art and culture vii that it was at the instance of cpm that rnt was designated as chairman emeritus and he was requested to attend board meetings as a special and permanent invitee and continue to guide the board viii that articles 104b and 121 were introduced through a new version of articles of association at the annual general meeting of tata sons held on 13 09 2000 and article 121 was subsequently amended by resolution dated 09 04 2014 ix that shri pallonji shapoorji mistry who represented the complainant companies was present at the general meeting held on 13 09 2000 x that cpm himself was a party to the resolution passed by the shareholders on 09 04 2014 introducing articles 121a and 121b xi that cpm s 27 leadership gave rise to certain issues such as insufficient detail and discipline on capital allocation decisions slow execution on identified problems lack of specificity and follow through in strategic plan and business plan failure to take meaningful steps to enter new growth businesses weak top management team and reluctance to embrace the articles of association that spelt out the governance structure of the company and the rights of tata trusts xii that there was a growing trust deficit between the board of directors of tata sons and cpm due to several reasons such as the conflict of interest in the matter of award of contracts to s p group of companies and his systematic and planned reduction of the representation of tata sons directors on the boards of other major tata companies xiii that even when the directors of tata sons resolved on 24 10 2016 to replace cpm as executive chairman the board agreed to his continuance as a director of tata sons xiv that however cpm addressed a vitriolic mail on 25 10 2016 to the directors making false allegations xv that though the mail 28 was marked confidential it was simultaneously leaked to the press xvi that cpm also breached his fiduciary and contractual duties by disclosing confidential information and documents pertaining to tata sons to third parties xvii that cpm made representations to the shareholders of all operating companies with unsubstantiated and false allegations thereby attempting to make the operating companies vulnerable to make confidential data available for public inspection xviii that the shareholders of tata industries limited tata consultancy services and tata teleservices limited passed resolutions respectively on 12 12 2016 13 12 2016 and 14 12 2016 to remove cpm from directorship xix that therefore cpm resigned from the directorship of the other companies also on 19 12 2016 when he faced the prospect of being removed in the impending meetings xx that the actions and conduct of cpm after 24 10 2016 compelled tata sons to issue a special notice and requisition for his removal from the directorship of tata sons xxi that the company petition was not about espousing the cause of 29 corporate governance or seeking remedies for oppression and mismanagement of tata sons xxii that prior to his removal as executive chairman cpm never raised any concerns regarding any oppression or mismanagement xxiii that many of the acts of oppression complained of by the complainant companies have happened long before the date of filing of the company petition showing thereby that the company petition was hopelessly barred by delay and laches 5 2 on the allegations of oppression and mismanagement the response of tata sons was as follows i that the complainant companies have cherry picked certain business decisions to launch a vitriolic attack on the tata trusts ii that while the complainant companies have talked about bad business deals such as corus acquisition and nano project they have deliberately omitted to talk about tetley acquisition by tata global beverages limited the immensely successful jaguar land rover acquisition by tata motors and the phenomenal success of tata consultancy services 30 iii that corus acquisition the nano project contracts awarded to the business concerns of mr mehli mistry and the investment by mr c sivasankaran have surfaced only after the replacement of mr cyrus mistry as the executive chairman iv that cpm has been the director of tata sons since the year 2006 and was also the executive chairman from december 2012 to october 2016 and was fully aware of how the decisions relating to these projects were taken when they were taken v that courts cannot be called upon to sit in judgment over the commercial decisions of the board of directors of companies and vi that even commercial mis judgments of the board of directors cannot be branded as instances of oppression and mis management 5 3 on specific acts of oppression and mismanagement raised in the company petition such as i over priced and bleeding acquisition of corus plc of uk ii doomed nano car project iii loan advanced by kalimati investments to siva iv sale of the 31 residential flat to mehli mistry v unjust enrichment of mehli mistry and the companies controlled by him due to the personal equation of rnt with him vi aviation industry misadventures and vii a huge loss due to purchase of shares of tata motors the reply filed by tata sons contained an elaborate and graphic rebuttal we shall take note of them later while dealing with the question whether or not the allegations constitute the ingredients of sections 241 and 242 of the act 6 the approach of nclt 6 1 the nclt in its order dated 9 7 2018 went into each of the allegations of oppression mismanagement and prejudice and recorded categorical findings in brief these findings allegation wise were as follows on the allegations revolving around siva and sterling group of companies 32 i tata teleservices shares were acquired in the year 2006 with the approval of the board and hence almost after 10 years it cannot be raised as an issue it is also a fact that the very complainant companies had acquired same ttsl shares two months before for rs 15 per share ii the loan taken from kalimati investments was already paid back by siva group of companies and the company was relieved of its undertaking by siva himself who provided personal guarantee for the loan taken from standard chartered bank iii as to the allegation that siva made a big profit by selling shares to ntt docomo rs 117 per share it is evident from the record that these shares were sold in the year 2008 to ntt docomo while ntt docomo was acquiring shares in bulk from ttsl as well as from some of the shareholders of ttsl including the brother and father of cpm and also from siva they also equally gained benefit just as siva group gained from selling shares of ttsl to ntt 33 docomo but this was not disclosed by the complainant companies either in their petition or in their rejoinder the rate at which the petitioners acquired shares of ttsl is less than the rate at which siva group acquired and the gain that the petitioners made by selling shares to ntt docomo was more than the gain siva group got from selling shares to ntt docomo iv no material has been placed either by the petitioner or by cpm to show that any information was leaked to siva group either by rnt or by anyone else v docomo issue cropped up in 2016 when the award was passed for payment of rs 8450 crores the letter around which a controversy is raised was written by rnt in the year 2013 hence that letter cannot be linked to docomo issue to show as if rnt was encouraging mr siva not to pay money to the company on the allegations relating to air asia 34 i air asia india pvt ltd is a joint venture between air asia berhad malaysian company and tata sons incorporated on 28 03 2013 the allegations relating to this are mostly based on the emails sent by one mr bharat vasani who is not a party to this proceeding and hence these allegations could not be put to test ii in the meeting held on 06 12 2012 cpm did not raise any objection to the approval of the joint venture or for infusing funds in air asia india until he was removed as chairman of the company iii in their desperate attempt to make a case out of nothing the complainant companies claim on the one hand that cpm had no say in the air asia transaction but on the other hand they claim that cpm protected the interest of the company by limiting its exposure to 30 equity of usd 30 million and by ensuring that no fall back liability came on the company 35 iv a person privy to a transaction is estopped from questioning it but the complainant companies and cpm have made all kinds of allegations with impunity flouting all legal principles they have proceeded as though they did not take active part in the air asia incorporation and as though cpm did not preside over the meeting on 15 09 2016 for further funding it in addition they have made a scurrilous statement without a shred of paper that rnt funded one terrorist through hawala with diversion of air asia india funds on the transactions with mehli mistry including the sale of the flat bhakthawar and a land alibaug i there is nothing to indicate that rnt got enriched at the cost of the company forbes golak was not made a party 36 and the transaction happened somewhere in the year 2002 but the allegation is raised in the year 2016 ii as to these allegations relating to mehli deriving huge benefits the only document that the petitioners and cpm filed and relied on is an email mr mehli addressed to mr padmanabhan of tpc among others iii in respect of the 1993 contract for dredging at trombay it was awarded by tata power to mpcl for 9 years after choosing them from amongst three vendors thereafter it was renewed 5 times for various tenures from october 2002 to september 2014 after obtaining requisite approvals when these approvals were given cpm was a director of tata power he held directorship from 1996 to 2006 and again from 2011 to 2016 but never raised any objection nano car project and the losses suffered by tata motors i rnt has not been the director of tata motors at any point of time during which the actions complained of happened 37 ii tata motors and jayem incorporated a joint venture company by name j t special vehicle pvt ltd with 50 50 shareholdings in july 2016 this joint venture was incorporated under the stewardship of cpm himself it is therefore entirely incorrect to say that jayem has benefited unduly from any patronage extended by rnt acquisition of corus i the acquisition of corus was a collective decision of tata steel and it was approved by cpm as a director of the board of tata steel this entire acquisition was undertaken following the due governance process under the supervision of the board of directors of tata steel without any dissent from any of the shareholders of tata steel ii tata steel did not buy it for an inflated price but it so happened that tata steel took a unanimous decision to quote a price of gbp 608 pence per share while their competitor csn s final bid was gbp 603 pence per share 38 cpm or the complainant companies have not placed any letter or email seeking divesting or restructuring of corus private company vs public company i on the impact of section 43a 2a of the companies act 1956 and the issue of the amended certificate of incorporation to tata sons it has to be seen that tata sons had not altered any of the articles of association so as to bring any new entrenchment to the articles and that the management had not done anything so as to cause prejudice to the rights of the minority shareholders on the contention that a few articles were oppressive or that they were abused i the contention that articles 104b 121 121a and 75 of the articles of association were per se oppressive and that they have been used as tools of oppression and mismanagement is unacceptable since cpm s father was party to the amendments made to the articles of association on 13 09 2000 the amendment of article 118 was passed on 39 06 12 2012 when cpm was the executive deputy chairman cpm was also party to the resolutions passed on 09 04 2014 in which the articles were amended so as to confer affirmative rights in favour of the directors of the trusts in so far as article 75 is concerned it was in existence throughout and hence the question whether persons who acquired shares of such a company consciously despite the presence of article 75 can turn around later and project them as oppressive looms large ii the fact that the nominee directors stepped out of the meeting of the board held on 29 06 2016 to take instructions from rnt on the issue of acquisition of welspun by tata power cannot be projected as an incident where article 121 was abused since the issue of acquisition of welspun should have come up before the board of tata sons even prior to tata power taking a decision in view of article 121a h since tata power had already signed the papers for the acquisition of welspun on 12 06 2016 itself 40 cpm really made the directors of tata sons as fait accompli therefore it was the action of cpm that was prejudicial to the interests of tata sons and not the other way around iii none of the articles have ever been opposed either by the complainant companies or by cpm at any point of time in the past and article 75 has been in place even before the complainant companies acquired shares allegation of breach of fiduciary duties by the directors i in support of their allegation that there was breach of fiduciary duties by the trust nominee directors and to prove that the directors of the company were guilty of dereliction of duties in the teeth of sections 149 and 166 of the companies act 2013 read with schedule iv code for independent directors the complainant companies had not placed any material other than the minutes of the meeting held on 24 10 2016 in which cpm was removed from chairmanship also the removal of cpm as executive 41 chairman was not in deprivation of any of the rights of the complainant companies as shareholders and his removal had nothing to do with his association with the complainant companies the removal of cpm as executive chairman cannot be projected as oppression of minority shareholders merely because he also happens to have controlling interest in companies that hold around 18 40 shareholding in the company ii the provision in the articles of association entitling the two trusts to have 1 3rd of the directors on the board of tata sons with an affirmative vote was actually a curtailment of their right to appoint majority of the directors to the board and hence it cannot be construed as oppressive of the minority on the removal of cpm 42 i the removal of cpm as executive chairman of tata sons on 24 10 2016 and his removal as director on 06 02 2017 were on account of trust deficit and there was no question of a selection committee going into the issue of his removal ii there was no material to hold that cpm was removed on account of purported legacy issues cpm created a situation where he is not accountable either to the majority shareholders or to the trust nominee directors and hence his removal iii the letter dated 25 10 2016 issued by cpm could not have been leaked to the media by anyone other than cpm and hence his removal from directorship on 06 02 2017 became inevitable 6 2 what we have provided in the preceding paragraph is an abridged version of the findings recorded by nclt on every one of the allegations contained in the main company petition apart from those findings recorded in the body of the judgment nclt itself 43 gave a summary of findings in paragraph 581 of its decision it is extracted verbatim as follows a removal of mr cyrus mistry as executive chairman on 24 10 2016 is because the board of directors and majority of shareholders i e tata trusts lost confidence in mr cyrus as chairman not because by contemplating that mr cyrus would cause discomfort to mr tata mr soonawala and other answering respondents over purported legacy issues board of directors are competent to remove executive chairman no selection committee recommendation is required before removing him as executive chairman b removal of mr cyrus mistry from the position of director is because he admittedly sent the company information to income tax authorities leaked the company information to media and openly come out against the board and the trusts which hardly augurs well for smooth functioning of the company and we have not found any merit to believe that his removal as director falls within the ambit of section 241 of companies act 2013 44 c we have not found any merit to hold that proportional representation on board proportionate to the shareholding of the petitioners is possible so long as articles do not have such mandate as envisaged under section 163 of companies act 2013 d we have not found any merit in purported legacy issues such as siva issue ttsl issue nano car issue corus issue mr mehli issue and air asia issue to state that those issues fall within the ambit of section 247 and 242 of companies act 2013 e we also have not found any merit to say that the company filing application under section 14 of companies act 2013 asking this tribunal to make it from public to private falls for consideration under the jurisdiction of section 247 242 of companies act 2013 f we have also found no merit in saying that mr tata mr soonawala giving advices and suggestions amounted to interference in administering the affairs of the company so that to consider their conduct as prejudicial to the interest of the company under section 241 of companies act 2013 45 g we have found no merit in the argument that mr tata and mr soonawala acted as shadow directors superimposing their wish upon the company so that action to be taken under section 241 242 of companies act 2013 h we have not found any merit in the argument that articles 75 104b 118 121 of the articles of association per se oppressive against the petitioners i we have not found any merit in the argument that majority rule has taken back seat by introduction of corporate governance in companies act 2013 it is like corporate democracy is genesis and corporate governance is species they are never in conflict with each other the management is rather more accountable to the shareholders under the present regime corporate governance is collective responsibility not based on assumed free hand rule which is alien to the concept of collective responsibility endowed upon the board j we have observed that prejudice remedy has been included in 2013 act in addition to oppressive remedy already there and also included application of just and equitable ground as precondition to pass any relief in 46 mismanagement issues which was not the case under old act 7 the approach of nclat 7 1 while nclt dealt with every one of the allegations contained in the main company petition and recorded its findings nclat curiously focused attention only on i the removal of cpm ii the affirmative voting rights of the directors nominated by the 2 trusts in the decision making process and iii the amended certificate of incorporation issued by the roc deleting the word public and making it a private company once again 7 2 the findings recorded by nclat are presented to a great extent in the language of nclat itself as follows 47 i the word unfairly prejudicial has not been used in section 241 the indian law sections 241 242 of the companies act 2013 does not recognize the term legitimate expectation to hold any act prejudicial or oppressive paragraphs 101 and 102 of the impugned order ii in the general meeting of the shareholders of tata sons limited or the board of directors the majority decision is fully dependent upon the affirmative votes of nominated directors of tata trusts the affirmative vote of the directors nominated by tata trusts has an overriding effect and renders the majority decision subservient to it paragraph 115 of the impugned order iii the tribunal appellate tribunal has no jurisdiction to hold any of the articles as illegal or arbitrary the terms and conditions being agreed upon by the shareholders however if any action is taken even in accordance with law which is prejudicial or oppressive to any member or members or 48 prejudicial to the company or prejudicial to the public interest the tribunal can notice whether the facts would justify the winding up of the company and in such case if the tribunal holds that it would unfairly prejudice member or members or public interest or interest of the company it may pass appropriate orders in terms of section 242 paragraph 119 of the impugned order iv the email correspondence dated 18 07 2013 28 02 2014 11 03 2015 28 05 2015 03 11 2015 etc would show that cpm was unaware and not in a position to understand how decisions are taken by the tata trusts before the decision of the board of directors of tata sons and that cpm felt the need for development of a governance framework paragraph 126 of the impugned order v emails dated 13th march 2016 30th april 2016 and 10th may 2016 between cpm and mr nitin nohria show that cpm formulated a governance framework after obtaining the 49 feedback from mr nitin nohria to clarify the role of the trustees of tata trusts in the decision making process of tata sons limited it was followed by e mail dated 15th may 2016 sent by cpm to rnt forwarding a draft of the governance framework paragraph 127 of the impugn truncated 214 2021_c a no 000218 2021 umrao singh bhandari ngt the principal of the government inter college mukesh verma dhruv mehta nos 2018 03 04 we do not find any good ground to interfere with the impugned order passed by the national green tribunal the tribunal having directed the state government to assess the functioning of respondents private units and in case the said units are found violating the policies dated 19 11 2016 and 20 11 2018 to take appropriate action 17 thereafter on 26 08 2019 when the o a no 449 2019 was posted for hearing the ngt passed the following order under an erroneous impression the learned counsel for the applicant submits that he may be permitted to withdraw this original application so as to pursue his remedy elsewhere in accordance to law page 9 of 14 consequently original application no 449 2019 is dismissed as withdrawn thereafter the learned counsel for respondent mr vivek gupta appeared and submitted that the original application filed by the applicant was o a 332 2017 whereas the present o a 449 2019 has been registered by the office after receiving the report therefore the counsel for the original applicant is not to withdraw the original application 449 2019 as the same has not been filed by the original applicant in view of the above list this case in court tomorrow i e 27th august 2019 18 as noted above since the o a no 449 2019 was not filed by the appellants who had filed the earlier o a no 332 2017 which was already disposed of by the ngt it was observed that the withdrawal of the o a no 449 2019 at the instance of the appellants was not proper and accordingly the said o a was directed to be listed on the next date i e 27 08 2019 when the matter was listed next on 27 08 2019 the following order came to be passed which is the subject matter of challenge in this proceeding on account of some factual misunderstanding an order was passed yesterday however after having come to know the fact that original application 449 2019 is not the one filed by the applicant but has been so registered by the page 10 of 14 office on receipt of the report by the respondents in light of the order passed while disposing original application 332 2017 we ordered to list the matter in court again we have perused the contents of the original application 449 2019 and in the facts and circumstances of the case we are of the view that no further adjudication is required consequently original application 449 2019 stands disposed of with no order as to cost 19 the impugned order of the ngt as extracted above clearly suggests that the o a no 449 2019 which was registered in pursuance to the adverse govt report against the respondents stone crushers was never adjudicated on merit the issues were never taken to its logical end despite the clear finding in the government report that the respondents 4 5 are operating in violation of the government policy and the environmental norms and ameliorative steps were needed the contesting counsel for the parties are in agreement on the aspect that the ngt should have decided the o a 449 2019 on merit instead of closing the proceeding as a disposed of matter decision on merit was particularly expected since the ngt itself on 11 12 2018 while disposing of page 11 of 14 o a no 332 2017 had directed the state government to assess the functioning of the stone crushers and to take action for their closure in the event they are found violating any of the policy parameters or environmental norms to facilitate appropriate action the fresh o a no 449 2019 was directed to be registered soon after the government report was produced before the ngt 20 there can be no quarrel with the proposition that public interest would warrant action against polluting units this is equally applicable to those industrial units which have been functioning since long adherence to the environmental and pollution norms cannot be compromised for factual misunderstandings or due to cryptic determination orders which have direct repercussions on the right to clean environment must surely be the outcome of careful scrutiny and substantive deliberation as per the applicable facts the ngt was required to address the grievance on the adverse health impacts on local populace by the stone crushers the tribunal itself had recognized that orders were necessary to resolve the issue the factual determination had reflected the need to ensure heightened compliance with the environmental norms for the concerned area on 13 01 2015 in the related o a no 123 of 2014 himmat page 12 of 14 singh shekhawat vs state of rajasthan the tribunal made it clear that even the pre existing units must fall in line as noted before the subsequent o a 449 2019 was ordered to be registered for consideration of the report requisitioned by the ngt itself it was also clarified that the o a 449 2019 was based upon the report furnished to the tribunal in this backdrop the action needed on the report should have been indicated at the very least the tribunal would be expected to ascertain whether substantial compliance of its earlier orders was made by the two stone crushing units of the respondents 21 we are therefore of the opinion that the view taken in the impugned order to the effect that the o a no 449 2019 does not require adjudication does not appear to be in order and the same is therefore set aside consequently the o a no 449 2019 is restored and ordered to be adjudicated on merit the ngt should however render its decision without being influenced by the observations made in this judgment it is ordered accordingly the appeal stands allowed leaving the parties to bear their own cost j r subhash reddy page 13 of 14 j hrishikesh roy new delhi november 18 2021 page 14 of 14 non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 218 of 2021 tejinder kumar jolly anr appellant s versus the state of uttarakhand ors respondent s j u d g m e n t hrishikesh roy j heard mr v k shukla learned counsel for the appellants also heard mr rahul verma the learned additional advocate general for the state respondent no 1 mr mukesh verma learned counsel for respondent no 2 and mr dhruv mehta learned senior counsel for respondent nos 3 to 5 2 the challenge here is to the order dated 27th august 2019 whereby the learned national green tribunal for short the ngt opined that the o a no 449 of 2019 registered suo moto by the tribunal would not require adjudication in light of the order passed while disposing of the o a no 332 of 2017 page 1 of 14 3 the matter pertains to two stone crushers operated by the respondent nos 4 and 5 in village fatta bangar at haldwani in nainital district the contention of the appellant based on the report dated 7th april 2014 of the halka patwari is that the two stone crusher units are operating in violation of the statutory environmental norms in close vicinity of their village and also at near distance to the nearby schools and colleges 4 the appellant no 1 and his father umrao singh bhandari now deceased had moved the ngt for relocating the two stone crushers alleging unbearable sufferings due to noise and air pollution emanating from those units a complaint in this regard was also filed on 10th november 2013 by the principal of the government inter college moti nagar alleging that due to the stone crushers operations teaching is affected and the health of the students and teachers of the college are compromised a like complaint was made to the district magistrate nainital by the appellants pointing out the suffering of their co villagers 5 following the above complaint the deputy director mining addressed a letter on 7th march 2014 to the regional officer pollution control board haldwani for page 2 of 14 taking necessary action thereafter inspection of the area was made and the letter dated 26th march 2014 of the deputy director mining addressed to the sdm haldwani indicated that the stone crushers are located in the vicinity of residential houses and those are causing air and noise pollution in the surrounding areas the report by the jurisdictional halka patwari indicated the precise distance of the residential houses institutions from the offending stone crusher units it was also revealed that both units are in close vicinity of agricultural fields where wheat sugar soyabean crops are grown another report of the pollution control board sent to the district magistrate nainital suggest that the respondent units do not have valid permission under the water prevention and control of pollution act 1981 and the air prevention and control of pollution act 1974 and their request for permission was pending for consideration moreover the on site inspection of both himalaya stone industries and the himalaya grits reflected that acoustic enclosure on the dg set are not installed and the stone crushers are operating beyond the established norms and parameters page 3 of 14 6 noticing the inaction of the authorities despite the above reports the appellants filed o a no 332 of 2017 seeking closure re location of the stone crushers in the said proceeding the ngt passed an interim order on 10th august 2017 restricting the operation of both units during the day time from 7 a m to 6 p m this interim order was modified on 19th september 2017 whereby the ngt clarified that loading unloading operation can be carried out by the respondent units up to 8 p m 7 on orders of the tribunal a joint inspection was also carried out and the report thereof was placed before the ngt the appellants filed objection to the said report whereafter o a no 332 of 2017 was disposed of on 3 4 2018 with the following order heard the learned counsel for the parties as the matter involves a short question which is in dispute between the parties we propose to dispose of this application at this stage after perusing the materials on record including the joint inspection report filed by cpcb along with the policy of the state government we pass the following directions 1 that respondent no 4 and 4 a who are running the stone crushing units within the residential area colony shall file an undertaking before the tribunal that as per the policy of the state government they page 4 of 14 shall shift their stone crushing units to some other place beyond residential area by 30th november 2018 the said undertaking shall be filed within a week from today 2 on filing of the aforesaid undertaking respondent state pollution control board its authorities shall permit the respondent no 4 and 4a to continue till 30th november 2018 subject to their compliance to all the environmental laws 3 in case the respondent no 4 and 4a fail to submit the undertaking within the time stipulated the respondent state including pollution control board shall be free to take steps against respondent no 4 and 4a for removal of their stone crushing units immediately 4 on filing of undertaking by respondent no 4 and 4a they would continue only upto 30th november 2018 thereafter respondent state as well as pollution control board shall proceed against the aforesaid respondents to ensure that their stone crushing units are immediately stop and shall not be permitted to operate consequently the original application no 332 of 2017 stands disposed of with the aforesaid directions there shall be no order as to cost 8 the above order was challenged by respondent nos 3 to 5 in c a no 3664 of 2018 and this court set aside the order and remitted the matter back to the ngt for passing fresh speaking order after hearing the parties 9 the matter was listed thereafter on various dates and in the meantime further pleadings were exchanged on page 5 of 14 the report of the pollution control board filed before the ngt the reports suggest that the noise level emanating from both units is beyond the permissible parameters it is relevant to note that the subsequent notification issued on 09 06 2021 by the uttarakhand government specifies silence zone upto 100 meters from educational institutions 10 the main stand of the respondents before the ngt is that they are old units operating since 1985 and they should not be forced to relocate because of the later developments 11 in like cases of pre existing industrial units the ngt in o a no 123 2014 himmat singh shekhawat vs state of rajasthan ors has pertinently declared the following the environmental laws are laws enacted for the benefit of public at large they are socio beneficial legislation enacted to protect the environment for the benefit of the public at large it is in discharge of their constitutional obligation that such laws have been enacted by the parliament or by other authorities in furtherance to the power of delegated legislation wasted in them these legislations and directives are incapable of being compared to the legislation in the field of taxation or criminal jurisprudence these laws have been enacted to protect the fundamental page 6 of 14 rights of the citizens thus the contention that the existing mining mine holders would not be required to comply with the requirements of environmental laws cannot be accepted to illustratively examine this aspect we may take hypothetical situation not far from reality an industrial unit which had been established and operationalized prior to 1974 1981 and or 1986 was granted permission under the laws in force and the unit owner had made heavy investment in making the unit operational the water act came into force in 1974 air act in 1981 and environment protection act in 1986 all these acts deal with existing units as well as units which are to be established in future these laws granted time to the existing units to take all anti pollution measures and obtain the consent of the respective pollution control boards to continue its operation failure to do so could invite panel action including closure of industry under these acts the said units should not be permitted to contend that since it was an existing unit it has earned a right to pollute the environment and cause environmental pollution putting the life of the others at risks on the ground that it was an existing unit and was operating in accordance with law such a contention if raised would have to be notice only to be rejected similarly these notifications or office memorandums having been issued under the environmental laws would equally apply to the existing industries as well the directions contained in these notifications and office memorandums which are otherwise valid would equally operate to the existing mines as well as the newly undertaken mining activities page 7 of 14 12 on 11 12 2018 after the supreme court remand the ngt passed a fresh order disposing of the o a no 332 2017 whereby the onus was shifted to the state government to assess the functioning of the stone crushers and in the event they are found violating any of the environmental norms steps were to be taken for closure of the offending units the government was also asked to submit a compliance report to the ngt which was directed to be registered as a fresh o a as soon as the same is received 13 the appellants then endeavored to ensure compliance of the ngt s directions in their o a no 332 of 2017 but when those efforts yielded nothing they were compelled to file the ep no 2 2018 in the o a no 332 2017 for executing the ngt s order dated 11 12 2018 14 the uttarakhand government thereafter on 21 2 2019 filed a report by way of an affidavit together with two joint inspection reports dated 1 1 2019 and 1 2 2019 respectively in the report dated 1 2 2019 several violations by the respondent units were highlighted but steps were not taken to shut those down as per the ngt s earlier directions page 8 of 14 15 the aforesaid government report dated 21 2 2019 was then registered as a fresh o a no 449 2019 in the ngt as the report of the state government led to registration of a fresh oa the appellants withdrew their execution application no 2 2018 in the earlier o a no 332 2017 16 noticing the continued inaction of the state government despite the adverse finding in the report submitted to the ngt on 21 2 2019 the appellants moved this court by filing the civil appeal diary no 11823 2019 the said matter was disposed of by this court on 15 4 2019 with the following order we do not find any good ground to interfere with the impugned order passed by the national green tribunal the tribunal having directed the state government to assess the functioning of respondents private units and in case the said units are found violating the policies dated 19 11 2016 and 20 11 2018 to take appropriate action 17 thereafter on 26 08 2019 when the o a no 449 2019 was posted for hearing the ngt passed the following order under an erroneous impression the learned counsel for the applicant submits that he may be permitted to withdraw this original application so as to pursue his remedy elsewhere in accordance to law page 9 of 14 consequently original application no 449 2019 is dismissed as withdrawn thereafter the learned counsel for respondent mr vivek gupta appeared and submitted that the original application filed by the applicant was o a 332 2017 whereas the present o a 449 2019 has been registered by the office after receiving the report therefore the counsel for the original applicant is not to withdraw the original application 449 2019 as the same has not been filed by the original applicant in view of the above list this case in court tomorrow i e 27th august 2019 18 as noted above since the o a no 449 2019 was not filed by the appellants who had filed the earlier o a no 332 2017 which was already disposed of by the ngt it was observed that the withdrawal of the o a no 449 2019 at the instance of the appellants was not proper and accordingly the said o a was directed to be listed on the next date i e 27 08 2019 when the matter was listed next on 27 08 2019 the following order came to be passed which is the subject matter of challenge in this proceeding on account of some factual misunderstanding an order was passed yesterday however after having come to know the fact that original application 449 2019 is not the one filed by the applicant but has been so registered by the page 10 of 14 office on receipt of the report by the respondents in light of the order passed while disposing original application 332 2017 we ordered to list the matter in court again we have perused the contents of the original application 449 2019 and in the facts and circumstances of the case we are of the view that no further adjudication is required consequently original application 449 2019 stands disposed of with no order as to cost 19 the impugned order of the ngt as extracted above clearly suggests that the o a no 449 2019 which was registered in pursuance to the adverse govt report against the respondents stone crushers was never adjudicated on merit the issues were never taken to its logical end despite the clear finding in the government report that the respondents 4 5 are operating in violation of the government policy and the environmental norms and ameliorative steps were needed the contesting counsel for the parties are in agreement on the aspect that the ngt should have decided the o a 449 2019 on merit instead of closing the proceeding as a disposed of matter decision on merit was particularly expected since the ngt itself on 11 12 2018 while disposing of page 11 of 14 o a no 332 2017 had directed the state government to assess the functioning of the stone crushers and to take action for their closure in the event they are found violating any of the policy parameters or environmental norms to facilitate appropriate action the fresh o a no 449 2019 was directed to be registered soon after the government report was produced before the ngt 20 there can be no quarrel with the proposition that public interest would warrant action against polluting units this is equally applicable to those industrial units which have been functioning since long adherence to the environmental and pollution norms cannot be compromised for factual misunderstandings or due to cryptic determination orders which have direct repercussions on the right to clean environment must surely be the outcome of careful scrutiny and substantive deliberation as per the applicable facts the ngt was required to address the grievance on the adverse health impacts on local populace by the stone crushers the tribunal itself had recognized that orders were necessary to resolve the issue the factual determination had reflected the need to ensure heightened compliance with the environmental norms for the concerned area on 13 01 2015 in the related o a no 123 of 2014 himmat page 12 of 14 singh shekhawat vs state of rajasthan the tribunal made it clear that even the pre existing units must fall in line as noted before the subsequent o a 449 2019 was ordered to be registered for consideration of the report requisitioned by the ngt itself it was also clarified that the o a 449 2019 was based upon the report furnished to the tribunal in this backdrop the action needed on the report should have been indicated at the very least the tribunal would be expected to ascertain whether substantial compliance of its earlier orders was made by the two stone crushing units of the respondents 21 we are therefore of the opinion that the view taken in the impugned order to the effect that the o a no 449 2019 does not require adjudication does not appear to be in order and the same is therefore set aside consequently the o a no 449 2019 is restored and ordered to be adjudicated on merit the ngt should however render its decision without being influenced by the observations made in this judgment it is ordered accordingly the appeal stands allowed leaving the parties to bear their own cost j r subhash reddy page 13 of 14 j hrishikesh roy new delhi november 18 2021 page 14 of 14 232 2021_crl a no 000257 000257 2021 the trial court court the narcotics control bureau the narcotic drugs and psychotropic substances act 19852 the narcotics control bureau zonal unit 2020 07 28 singh v state 2 learned counsel for the appellant submits that out of the total sentence of 10 years awarded to the appellant by the trial court the appellant has already undergone a period of about 4 years and 4 months he has taken the court through the records to show that though the appellant who was owner of the courier company has been convicted and the employee of the company who had received the parcels has been acquitted on the same set of evidence it is further submitted that no investigation was made to arrest the consignor he also submits that since the appeal is likely to take some time to come up for final hearing no useful purpose would be served in keeping the appellant in jail till such time and prays that the appellant s sentence may be suspended during the pendency of the appeal 3 6 the application was opposed on behalf of the narcotics control bureau by the senior standing counsel who appeared to oppose the suspension of sentence the high court while passing an order of suspension of sentence indicated its reasons in paragraph 4 of the order which reads as follows 4 looking into the facts and circumstances of the case and the period undergone by the appellant and the fact that the appeal is not likely to be taken for hearing in near future on account of disruption caused by covid 19 pandemic the application is allowed and the sentence of the appellant is suspended during the pendency of the appeal on his furnishing a personal bond in the sum of rs 50 000 with one surety of the like amount to the satisfaction of the concerned jail superintendent duty magistrate subject to the following further conditions i the appellant will not leave nct of delhi without prior permission of the court ii the appellant shall appear before the court as and when the appeal is taken up for final hearing iii in case of change of address the appellant shall promptly inform the same to the concerned io as well as to the court 7 mr aman lekhi learned additional solicitor general appearing on behalf of the appellant submits that the provisions of section 37 of the ndps act contain stringent requirements before an application for bail can be allowed learned additional solicitor general submits that one of the requirements is that the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail it was urged that in a case such as a present where the conviction is under the provisions of sections 23 c and 25a of the ndps act the requirement of section 37 that there are reasonable grounds for believing that he is not guilty of such offence must apply a fortiori because the trial court after conducting a trial has on the basis of the evidence which is adduced come to the conclusion that the offence has been established in the present case it was 4 urged that absolutely no reasons have been indicated by the learned single judge of the high court for granting bail save and except for a vague reference to the facts and circumstances of the case the period undergone by the respondent and the fact that the appeal was not likely to be taken for hearing in the near future due to the disruption caused by the covid 19 pandemic 8 on the other hand ms nidhi learned counsel appearing through the supreme court legal services committee to represent the respondent has adverted to the judgment of the trial judge and submitted that prima facie the involvement of the respondent would not stand established that apart it has been submitted that the respondent has undergone about four years and four months of imprisonment and the high court having exercised its discretion to grant bail a case for interference has not been made out 9 while considering the rival submissions we must at the outset advert to the manner in which the learned single judge of the high court has dealt with the application for suspension of sentence under section 389 1 of crpc the offence of which the respondent has been convicted by the special judge arises out of the provisions of sections 23 c and 25a of the ndps act the findings of the learned special judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine section 37 of the ndps act stipulates that no person accused of an offence punishable for offences under section 19 or section 24 or section 27a and also for offences involving a commercial quantity shall be released on bail where the public prosecutor opposes the application unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence 5 while on bail where the trial has ended in an order of conviction the high court when a suspension of sentence is sought under section 389 1 of crpc must be duly cognizant of the fact that a finding of guilt has been arrived at by the trial judge at the conclusion of the trial this is not to say that the high court is deprived of its power to suspend the sentence under section 389 1 of crpc the high court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of section 37 of the ndps act at this stage we will refer to the decision of a two judge bench of this court in preet pal singh v state of uttar pradesh3 where justice indira banerjee speaking for the court observed as follows 35 there is a difference between grant of bail under section 439 of the crpc in case of pre trial arrest and suspension of sentence under section 389 of the crpc and grant of bail post conviction in the earlier case there may be presumption of innocence which is a fundamental postulate of criminal jurisprudence and the courts may be liberal depending on the facts and circumstances of the case on the principle that bail is the rule and jail is an exception as held by this court in dataram singh v state of u p and anr supra however in case of post conviction bail by suspension of operation of the sentence there is a finding of guilt and the question of presumption of innocence does not arise nor is the principle of bail being the rule and jail an exception attracted once there is conviction upon trial rather the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal coupled with other factors there should be strong compelling reasons for grant of bail notwithstanding an order of conviction by suspension of sentence and this strong and compelling reason must be recorded in the order granting bail as mandated in section 389 1 of the cr p c 10 the principles which must guide the grant of bail in a case under the ndps act have been reiterated in several decisions of this court and we may refer to the decision in state of kerala v rajesh4 the high court unfortunately in the present case has not applied its mind to the governing provisions of the ndps 3 2020 8 scc 645 4 2020 12 scc 122 6 act on the basis of the material which emerged before the learned special judge and which forms the basis of the order of conviction we are of the view that no case for suspension of sentence under section 389 1 of crpc was established the order granting suspension of sentence under section 389 1 of crpc is unsustainable and would accordingly have to be set aside 11 while concluding however we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the high court 12 for the above reasons we allow the appeal the judgment and order of the high court dated 28 july 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence however having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the high court to take up the appeal for hearing and final disposal upon the respondent s surrendering to the sentence and dispose it of by the end of 2021 13 pending application if any stands disposed of j dr dhananjaya y chandrachud j m r shah new delhi march 02 2021 s 7 revised item no 8 court 6 video conferencing section ii c s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal crl no s 670 2021 arising out of impugned final judgment and order dated 28 07 2020 in crlmb no 7540 2020 passed by the high court of delhi at new delhi the state gnct of delhi narcotics control bureau petitioner s versus lokesh chadha respondent s with ia no 9362 2021 exemption from filing c c of the impugned judgment date 02 03 2021 this petition was called on for hearing today coram hon ble dr justice d y chandrachud hon ble mr justice m r shah for petitioner s mr aman lekhi asg mr bharat singh adv mr b v balaram das aor mr divyansh h rathi adv mr anirudh bakhru adv for respondent s ms nidhi aor mr jaydip pati adv upon hearing the counsel the court made the following o r d e r 1 leave granted 2 for the reasons recorded in the signed reportable judgment we allow the appeal the judgment and order of the high court dated 28 july 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence however having regard to the fact that the respondent has undergone four years and four months of 8 imprisonment we would request the high court to take up the appeal for hearing and final disposal upon the respondent s surrendering to the sentence and dispose it of by the end of 2021 3 pending application if any stands disposed of sanjay kumar i saroj kumari gaur ar cum ps court master signed reportable judgment is placed on the file 9 item no 8 court 6 video conferencing section ii c s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal crl no s 670 2021 arising out of impugned final judgment and order dated 28 07 2020 in crlmb no 7540 2020 passed by the high court of delhi at new delhi narcotics control bureau petitioner s versus lokesh chadha respondent s with ia no 9362 2021 exemption from filing c c of the impugned judgment date 02 03 2021 this petition was called on for hearing today coram hon ble dr justice d y chandrachud hon ble mr justice m r shah for petitioner s mr aman lekhi asg mr bharat singh adv mr b v balaram das aor mr divyansh h rathi adv mr anirudh bakhru adv for respondent s ms nidhi aor mr jaydip pati adv upon hearing the counsel the court made the following o r d e r 1 leave granted 2 for the reasons recorded in the signed reportable judgment we allow the appeal the judgment and order of the high court dated 28 july 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence however having regard to the fact that the respondent has undergone four years and four months of 10 imprisonment we would request the high court to take up the appeal for hearing and final disposal upon the respondent s surrendering to the sentence and dispose it of by the end of 2021 3 pending application if any stands disposed of sanjay kumar i saroj kumari gaur ar cum ps court master signed reportable judgment is placed on the file 1 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 257 of 2021 arising out of slp crl no 670 of 2021 the state gnct of delhi narcotics control bureau appellant s versus lokesh chadha respondent s j u d g m e n t dr dhananjaya y chandrachud j 1 leave granted 2 this appeal arises from a judgment of a learned single judge of the high court of delhi dated 28 july 2020 by which the application filed by the respondent seeking suspension of sentence under section 389 1 of the code of criminal procedure 19731 has been allowed 3 the respondent has been convicted of offences punishable under sections 23 c and 25a of the narcotic drugs and psychotropic substances act 19852 he has been sentenced to suffer rigorous imprisonment for ten years in respect of the offence under section 23 c and for three years under the provisions of section 25a apart from fine 1 crpc 2 ndps act 2 4 briefly stated on 2 december 2015 the io of the narcotics control bureau delhi zonal unit received a phone call from dhl courier that two parcels were lying in the office and were suspected to contain narcotic drugs accordingly a team of the narcotics control bureau delhi zonal unit reached the office of dhl two parcels were seized the parcels were found to contain 325 grams of heroin and 390 grams of pseudoephedrine the parcels were booked to a foreign destination at the behest of a foreign national by the co accused who was an employee of the respondent the respondent himself is a proprietor of the courier agency which had accepted the parcels initially for booking from the foreign national 5 the special judge after considering the entirety of the evidence on the record came to the conclusion that the offence stood established as against the respondent but the benefit of doubt was granted to the co accused on the ground that he was only an employee who was acting at the behest of the respondent an appeal has been filed before the high court of delhi by the respondent while considering the application for suspending the sentence the learned single judge recorded the following submissions of the respondent in paragraph 2 of the impugned order 2 learned counsel for the appellant submits that out of the total sentence of 10 years awarded to the appellant by the trial court the appellant has already undergone a period of about 4 years and 4 months he has taken the court through the records to show that though the appellant who was owner of the courier company has been convicted and the employee of the company who had received the parcels has been acquitted on the same set of evidence it is further submitted that no investigation was made to arrest the consignor he also submits that since the appeal is likely to take some time to come up for final hearing no useful purpose would be served in keeping the appellant in jail till such time and prays that the appellant s sentence may be suspended during the pendency of the appeal 3 6 the application was opposed on behalf of the narcotics control bureau by the senior standing counsel who appeared to oppose the suspension of sentence the high court while passing an order of suspension of sentence indicated its reasons in paragraph 4 of the order which reads as follows 4 looking into the facts and circumstances of the case and the period undergone by the appellant and the fact that the appeal is not likely to be taken for hearing in near future on account of disruption caused by covid 19 pandemic the application is allowed and the sentence of the appellant is suspended during the pendency of the appeal on his furnishing a personal bond in the sum of rs 50 000 with one surety of the like amount to the satisfaction of the concerned jail superintendent duty magistrate subject to the following further conditions i the appellant will not leave nct of delhi without prior permission of the court ii the appellant shall appear before the court as and when the appeal is taken up for final hearing iii in case of change of address the appellant shall promptly inform the same to the concerned io as well as to the court 7 mr aman lekhi learned additional solicitor general appearing on behalf of the appellant submits that the provisions of section 37 of the ndps act contain stringent requirements before an application for bail can be allowed learned additional solicitor general submits that one of the requirements is that the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail it was urged that in a case such as a present where the conviction is under the provisions of sections 23 c and 25a of the ndps act the requirement of section 37 that there are reasonable grounds for believing that he is not guilty of such offence must apply a fortiori because the trial court after conducting a trial has on the basis of the evidence which is adduced come to the conclusion that the offence has been established in the present case it was 4 urged that absolutely no reasons have been indicated by the learned single judge of the high court for granting bail save and except for a vague reference to the facts and circumstances of the case the period undergone by the respondent and the fact that the appeal was not likely to be taken for hearing in the near future due to the disruption caused by the covid 19 pandemic 8 on the other hand ms nidhi learned counsel appearing through the supreme court legal services committee to represent the respondent has adverted to the judgment of the trial judge and submitted that prima facie the involvement of the respondent would not stand established that apart it has been submitted that the respondent has undergone about four years and four months of imprisonment and the high court having exercised its discretion to grant bail a case for interference has not been made out 9 while considering the rival submissions we must at the outset advert to the manner in which the learned single judge of the high court has dealt with the application for suspension of sentence under section 389 1 of crpc the offence of which the respondent has been convicted by the special judge arises out of the provisions of sections 23 c and 25a of the ndps act the findings of the learned special judge which have been arrived at after a trial on the basis of evidence which has been adduced indicate that the respondent who was a proprietor of a courier agency was complicit with a foreign national in the booking of two parcels which were found to contain 325 grams of heroin and 390 grams of pseudoephedrine section 37 of the ndps act stipulates that no person accused of an offence punishable for offences under section 19 or section 24 or section 27a and also for offences involving a commercial quantity shall be released on bail where the public prosecutor opposes the application unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence 5 while on bail where the trial has ended in an order of conviction the high court when a suspension of sentence is sought under section 389 1 of crpc must be duly cognizant of the fact that a finding of guilt has been arrived at by the trial judge at the conclusion of the trial this is not to say that the high court is deprived of its power to suspend the sentence under section 389 1 of crpc the high court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of section 37 of the ndps act at this stage we will refer to the decision of a two judge bench of this court in preet pal singh v state of uttar pradesh3 where justice indira banerjee speaking for the court observed as follows 35 there is a difference between grant of bail under section 439 of the crpc in case of pre trial arrest and suspension of sentence under section 389 of the crpc and grant of bail post conviction in the earlier case there may be presumption of innocence which is a fundamental postulate of criminal jurisprudence and the courts may be liberal depending on the facts and circumstances of the case on the principle that bail is the rule and jail is an exception as held by this court in dataram singh v state of u p and anr supra however in case of post conviction bail by suspension of operation of the sentence there is a finding of guilt and the question of presumption of innocence does not arise nor is the principle of bail being the rule and jail an exception attracted once there is conviction upon trial rather the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal coupled with other factors there should be strong compelling reasons for grant of bail notwithstanding an order of conviction by suspension of sentence and this strong and compelling reason must be recorded in the order granting bail as mandated in section 389 1 of the cr p c 10 the principles which must guide the grant of bail in a case under the ndps act have been reiterated in several decisions of this court and we may refer to the decision in state of kerala v rajesh4 the high court unfortunately in the present case has not applied its mind to the governing provisions of the ndps 3 2020 8 scc 645 4 2020 12 scc 122 6 act on the basis of the material which emerged before the learned special judge and which forms the basis of the order of conviction we are of the view that no case for suspension of sentence under section 389 1 of crpc was established the order granting suspension of sentence under section 389 1 of crpc is unsustainable and would accordingly have to be set aside 11 while concluding however we hasten to add that our observations are confined to the question as to whether a case for suspension of sentence was made out and shall not affect the merits of the case when the appeal comes up for hearing before the high court 12 for the above reasons we allow the appeal the judgment and order of the high court dated 28 july 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence however having regard to the fact that the respondent has undergone four years and four months of imprisonment we would request the high court to take up the appeal for hearing and final disposal upon the respondent s surrendering to the sentence and dispose it of by the end of 2021 13 pending application if any stands disposed of j dr dhananjaya y chandrachud j m r shah new delhi march 02 2021 s 7 revised item no 8 court 6 video conferencing section ii c s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal crl no s 670 2021 arising out of impugned final judgment and order dated 28 07 2020 in crlmb no 7540 2020 passed by the high court of delhi at new delhi the state gnct of delhi narcotics control bureau petitioner s versus lokesh chadha respondent s with ia no 9362 2021 exemption from filing c c of the impugned judgment date 02 03 2021 this petition was called on for hearing today coram hon ble dr justice d y chandrachud hon ble mr justice m r shah for petitioner s mr aman lekhi asg mr bharat singh adv mr b v balaram das aor mr divyansh h rathi adv mr anirudh bakhru adv for respondent s ms nidhi aor mr jaydip pati adv upon hearing the counsel the court made the following o r d e r 1 leave granted 2 for the reasons recorded in the signed reportable judgment we allow the appeal the judgment and order of the high court dated 28 july 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence however having regard to the fact that the respondent has undergone four years and four months of 8 imprisonment we would request the high court to take up the appeal for hearing and final disposal upon the respondent s surrendering to the sentence and dispose it of by the end of 2021 3 pending application if any stands disposed of sanjay kumar i saroj kumari gaur ar cum ps court master signed reportable judgment is placed on the file 9 item no 8 court 6 video conferencing section ii c s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal crl no s 670 2021 arising out of impugned final judgment and order dated 28 07 2020 in crlmb no 7540 2020 passed by the high court of delhi at new delhi narcotics control bureau petitioner s versus lokesh chadha respondent s with ia no 9362 2021 exemption from filing c c of the impugned judgment date 02 03 2021 this petition was called on for hearing today coram hon ble dr justice d y chandrachud hon ble mr justice m r shah for petitioner s mr aman lekhi asg mr bharat singh adv mr b v balaram das aor mr divyansh h rathi adv mr anirudh bakhru adv for respondent s ms nidhi aor mr jaydip pati adv upon hearing the counsel the court made the following o r d e r 1 leave granted 2 for the reasons recorded in the signed reportable judgment we allow the appeal the judgment and order of the high court dated 28 july 2020 suspending the sentence of the respondent shall stand set aside and the respondent shall surrender forthwith to the sentence however having regard to the fact that the respondent has undergone four years and four months of 10 imprisonment we would request the high court to take up the appeal for hearing and final disposal upon the respondent s surrendering to the sentence and dispose it of by the end of 2021 3 pending application if any stands disposed of sanjay kumar i saroj kumari gaur ar cum ps court master signed reportable judgment is placed on the file 291 2017_crl a no 000462 000462 2019 the high court rajasthan moti ram 2016 09 21 hossain v state 1 in the supreme court of india criminal appellate jurisdiction criminal appeal no 462 of 2019 sita ram ors appellants versus state of rajasthan respondent o r d e r this appeal by special leave is directed against the judgment and final order dated 21 09 2016 passed by the high court of judicature for rajasthan at jaipur bench jaipur in d b criminal appeal no 175 of 1983 the crime in the instant case was registered pursuant to the reporting made by one moti ram to the effect that on 02 08 1982 when his mother and wife in the company of his brother phoolchand had gone to the agricultural field situated at khasra no 210 hanumaan son of noparam mangu son of 2 noparam surja son of noparam sitaram son of hanuman jagdish son of mangu prahlad son of surja ganesh son of mangu mangla s o hanuman mahabaksh son of hanuman tulchi wife of hanuman fuli w o mangu rama w o surja anchli w o jagdish gulabi w o sitaram mangli daughter of mangu guldi d o hanuman sankri d o surjaram sajan s o hanuman came there armed with sickles and cudgels and started assaulting his mother and wife his younger brother phoolchand ran back to the residence and reported the incident to his father ghadsee ram and brother shyam lal upon which they ran to the place of incident the assailants opened an assault on them which resulted in ghadsee ram sustaining injury on his head and back while his brother shyam lal sustained grave injuries with sickle on such reporting initially crime under sections 147 148 325 324 323 149 read with 382 of the indian penal code 1860 the ipc for short was registered with police station khatu shyamji district sikar rajasthan 3 after the death of ghadsee ram the offence under section 302 of the ipc came to be added in the post mortem conducted by pw4 dr m m mishra deceased ghadsee ram was found to be having following external injuries 1 stitched wound 2 long on left parietal area of scalp transerves 2 swelling 2 x 1 on left temporal area of scalp 3 lacerated wound 1 x 1 5 x 1 5 on right occipital area of scalp 4 bruise 2 x 2 on left frontal area of scalp 5 abrasion 1Ā½ x Ā½ on upper 1 3rd on left leg front 6 lacerated wound 3 4 x 1 10 x 1 10 on left cheek 7 bruise 2 x 1 on middle of right arm laterally 8 abrasion 2 x 1 on lower 1 3rd of right leg medially 9 abrasion 1 x 1 10 on middle left leg medially 10 abrasion 4 x 1 2 on the middle of right chest back oblique 11 abrasion 1 2 x 1 10 on back left huber area 4 12 abrasion 1 2 x 1 2 on left knee back 13 abrasion 1 2 x 1 4 on right knee front 14 bruise 2 x 2 on back of left hand 15 bruise 1 x 1 on back of left wrist the post mortem also indicated the following internal injuries 1 there was fracture of left frontal bone of skull 2 there was sub dural haematoma on left parietal bone below the fracture site 3 there was laceration of brain on left frontal bone 4 there were fractures of iii and iv untacarpats of left hand 5 there was fracture of upper end of felmla according to the medical report the internal injuries caused as a result of external injuries were sufficient in the ordinary course of nature to cause death according to the medical opinion all the injuries were caused by a blunt object such as lathi and all injuries were ante mortem 5 meera wife of moti ram who was injured in the transaction had suffered following injuries 1 lacerated wound 1 Ā¾ x Ā¼ x 3 8 on left parietal region of scalp 2 bruise 2Ā½ x 1 on lower Ā½ of lateral side of left thigh 3 abrasion 1 2 x 1 8 on left cheek 4 echymosis with tenderness on lower 1 3rd of left thigh just alone knee joint anteris laterally ms barji the mother of the informant was found to have suffered the following injuries 1 incised wound 5 8 x 1 8 x 3 8 on upper 1 3rd of right leg on front 2 swelling with cripitation at ii metacarpal bone on left hand 3 complained of pain with tenderness on lower Ā½ of left leg on lateral side 4 bruise 3 x 1 on middle 1 3rd of right thigh on lateral side 5 complained of pain on left humber region of back it is pertinent to mention here that two of the persons from the side of the accused also suffered injuries in the transaction 6 accused jagdish was found to have received the following injuries 1 incised wound 1 x 3 8 x 1 on left side of neck 2 bruise with echymosis 3 x 1 Ā½ on lower Ā½ of left leg on lateral side according to the medical opinion on record injury no 1 was caused by a sharp cutting weapon another accused prahlad had suffered the following injuries 1 incised wound 2Ā¼ x 1 x 3 8 on dorsum of left hand torrards thumb 2 incised wound 1Ā½ x 1 8 x 1 8 on lower 1 3rd of left forearm on back on radial side 3 abrasion 1 2 x 1 8 on upper 1 3rd of left forearm on radial side in this case also injuries no 1 and 2 were caused by sharp cutting weapon it must also be noted that the investigating officer pw11 mr amilal accepted the fact that with respect to the same transaction there were two 7 cross versions in the form of first information report filed in the present case as well as the reporting made at the instance of the side of the accused as a matter of fact reporting made by the accused was earlier in point of time pursuant to which first information report no 75 of 1982 in respect of the offences punishable under sections 447 and 323 of the ipc was registered out of 16 persons who were sent up for trial the trial court convicted eight male persons while acquitting rest of the accused including four female accused those eight persons namely hanuman manguram surja ram sitaram mangla ram prahlad jagdish and ganesh were found guilty of the offences punishable under sections 147 302 149 325 149 and 323 of the ipc and sentenced to suffer life imprisonment in respect of the offences punishable under section 302 and 302 149 ipc and for other subsidiary sentences for the remaining offences 8 the convicted accused being aggrieved filed d b criminal appeal no 175 of 1983 in the high court during the pendency of said appeal the convicted accused hanuman mangoo ram surja ram and jagdish died whereafter proceedings with respect to these accused stood abated while considering the role played by rest of the convicted accused the high court by its judgment and order dated 21 09 2016 which is presently under challenge did not find any case for interference affirming the view taken by the trial court the appeal was dismissed by the high court during the pendency of the instant proceedings a submission was raised that appellants no 2 to 4 namely mangla ram prahlad and ganesh were juveniles on the date when the incident had occurred and as such they were entitled to the benefit in terms of the juvenile justice care and protection of children act 2000 the j j act 2000 for short and the juvenile justice care and protection 9 of children act 2015 the j j act 2015 for short since this court in abuzar hossain alias gulam hossain v state of west bengal 2012 10 scc 489 had ruled that the claim of juvenility could be raised at any stage and even for the first time before this court though not pressed before the trial court and the appellate court by order dated 06 03 2019 this court referred the issue of juvenility of the appellants no 2 to 4 for consideration by the sessions court district sikar rajasthan the report in that behalf has since then been received according to which convicted accused appellants no 3 and 4 namely prahlad and ganesh respectively were juveniles on the day of the incident in view of the said assertion said convicts accused were directed to be released on bail which facility these two accused are still enjoying 10 we have heard mr ashok arora learned advocate for the appellants and mr harsha vinoy learned advocate for the state considering the totality of the circumstances on record it emerges a the deceased had died as a result of injuries which were suffered by a blunt object such as lathi b not a single injury could be associated with any sharp cutting weapon c similarly most of the injuries suffered by the injured prosecution witnesses were also by a blunt object d the record indicates that the place of occurrence was in an agricultural field situated at khasra no 210 e the evidence suggests that said agricultural field was a subject matter of dispute between the parties f two of the accused persons themselves also suffered injuries and some of those injuries were by sharp cutting weapons 11 g the incident was stated to have occurred when initially there was an exchange of words between the ladies which then got converted into an incident where blows were exchanged in the premises in our considered view the matter would be covered by exception fourthly to section 300 ipc and as such the crime in question would not be murder but culpable homicide not amounting to murder in the totality of the circumstances in our view all the accused would be principally guilty of the offences under section 304 ii and section 304 ii read with section 149 of the ipc we have been given to understand that the accused sita ram and mangla ram have completed about six years of sentence in the fitness of things the appropriate sentence for the principal offence under section 304 ii and 304 ii read with 149 of the ipc ought to be six years of imprisonment if the accused have completed six years of sentence they be released forth with 12 unless their custody is required in connection with any other offence as regards two of the accused namely prahlad and ganesh whose juvenility has been confirmed by the concerned sessions judge we direct that they be dealt with in terms of section 20 of the j j act 2000 and section 25 of the j j act 2015 with these observations the instant appeal stands allowed to the extent indicated hereinabove j uday umesh lalit j s ravindra bhat j bela m trivedi new delhi october 28 2021 1 in the supreme court of india criminal appellate jurisdiction criminal appeal no 462 of 2019 sita ram ors appellants versus state of rajasthan respondent o r d e r this appeal by special leave is directed against the judgment and final order dated 21 09 2016 passed by the high court of judicature for rajasthan at jaipur bench jaipur in d b criminal appeal no 175 of 1983 the crime in the instant case was registered pursuant to the reporting made by one moti ram to the effect that on 02 08 1982 when his mother and wife in the company of his brother phoolchand had gone to the agricultural field situated at khasra no 210 hanumaan son of noparam mangu son of 2 noparam surja son of noparam sitaram son of hanuman jagdish son of mangu prahlad son of surja ganesh son of mangu mangla s o hanuman mahabaksh son of hanuman tulchi wife of hanuman fuli w o mangu rama w o surja anchli w o jagdish gulabi w o sitaram mangli daughter of mangu guldi d o hanuman sankri d o surjaram sajan s o hanuman came there armed with sickles and cudgels and started assaulting his mother and wife his younger brother phoolchand ran back to the residence and reported the incident to his father ghadsee ram and brother shyam lal upon which they ran to the place of incident the assailants opened an assault on them which resulted in ghadsee ram sustaining injury on his head and back while his brother shyam lal sustained grave injuries with sickle on such reporting initially crime under sections 147 148 325 324 323 149 read with 382 of the indian penal code 1860 the ipc for short was registered with police station khatu shyamji district sikar rajasthan 3 after the death of ghadsee ram the offence under section 302 of the ipc came to be added in the post mortem conducted by pw4 dr m m mishra deceased ghadsee ram was found to be having following external injuries 1 stitched wound 2 long on left parietal area of scalp transerves 2 swelling 2 x 1 on left temporal area of scalp 3 lacerated wound 1 x 1 5 x 1 5 on right occipital area of scalp 4 bruise 2 x 2 on left frontal area of scalp 5 abrasion 1Ā½ x Ā½ on upper 1 3rd on left leg front 6 lacerated wound 3 4 x 1 10 x 1 10 on left cheek 7 bruise 2 x 1 on middle of right arm laterally 8 abrasion 2 x 1 on lower 1 3rd of right leg medially 9 abrasion 1 x 1 10 on middle left leg medially 10 abrasion 4 x 1 2 on the middle of right chest back oblique 11 abrasion 1 2 x 1 10 on back left huber area 4 12 abrasion 1 2 x 1 2 on left knee back 13 abrasion 1 2 x 1 4 on right knee front 14 bruise 2 x 2 on back of left hand 15 bruise 1 x 1 on back of left wrist the post mortem also indicated the following internal injuries 1 there was fracture of left frontal bone of skull 2 there was sub dural haematoma on left parietal bone below the fracture site 3 there was laceration of brain on left frontal bone 4 there were fractures of iii and iv untacarpats of left hand 5 there was fracture of upper end of felmla according to the medical report the internal injuries caused as a result of external injuries were sufficient in the ordinary course of nature to cause death according to the medical opinion all the injuries were caused by a blunt object such as lathi and all injuries were ante mortem 5 meera wife of moti ram who was injured in the transaction had suffered following injuries 1 lacerated wound 1 Ā¾ x Ā¼ x 3 8 on left parietal region of scalp 2 bruise 2Ā½ x 1 on lower Ā½ of lateral side of left thigh 3 abrasion 1 2 x 1 8 on left cheek 4 echymosis with tenderness on lower 1 3rd of left thigh just alone knee joint anteris laterally ms barji the mother of the informant was found to have suffered the following injuries 1 incised wound 5 8 x 1 8 x 3 8 on upper 1 3rd of right leg on front 2 swelling with cripitation at ii metacarpal bone on left hand 3 complained of pain with tenderness on lower Ā½ of left leg on lateral side 4 bruise 3 x 1 on middle 1 3rd of right thigh on lateral side 5 complained of pain on left humber region of back it is pertinent to mention here that two of the persons from the side of the accused also suffered injuries in the transaction 6 accused jagdish was found to have received the following injuries 1 incised wound 1 x 3 8 x 1 on left side of neck 2 bruise with echymosis 3 x 1 Ā½ on lower Ā½ of left leg on lateral side according to the medical opinion on record injury no 1 was caused by a sharp cutting weapon another accused prahlad had suffered the following injuries 1 incised wound 2Ā¼ x 1 x 3 8 on dorsum of left hand torrards thumb 2 incised wound 1Ā½ x 1 8 x 1 8 on lower 1 3rd of left forearm on back on radial side 3 abrasion 1 2 x 1 8 on upper 1 3rd of left forearm on radial side in this case also injuries no 1 and 2 were caused by sharp cutting weapon it must also be noted that the investigating officer pw11 mr amilal accepted the fact that with respect to the same transaction there were two 7 cross versions in the form of first information report filed in the present case as well as the reporting made at the instance of the side of the accused as a matter of fact reporting made by the accused was earlier in point of time pursuant to which first information report no 75 of 1982 in respect of the offences punishable under sections 447 and 323 of the ipc was registered out of 16 persons who were sent up for trial the trial court convicted eight male persons while acquitting rest of the accused including four female accused those eight persons namely hanuman manguram surja ram sitaram mangla ram prahlad jagdish and ganesh were found guilty of the offences punishable under sections 147 302 149 325 149 and 323 of the ipc and sentenced to suffer life imprisonment in respect of the offences punishable under section 302 and 302 149 ipc and for other subsidiary sentences for the remaining offences 8 the convicted accused being aggrieved filed d b criminal appeal no 175 of 1983 in the high court during the pendency of said appeal the convicted accused hanuman mangoo ram surja ram and jagdish died whereafter proceedings with respect to these accused stood abated while considering the role played by rest of the convicted accused the high court by its judgment and order dated 21 09 2016 which is presently under challenge did not find any case for interference affirming the view taken by the trial court the appeal was dismissed by the high court during the pendency of the instant proceedings a submission was raised that appellants no 2 to 4 namely mangla ram prahlad and ganesh were juveniles on the date when the incident had occurred and as such they were entitled to the benefit in terms of the juvenile justice care and protection of children act 2000 the j j act 2000 for short and the juvenile justice care and protection 9 of children act 2015 the j j act 2015 for short since this court in abuzar hossain alias gulam hossain v state of west bengal 2012 10 scc 489 had ruled that the claim of juvenility could be raised at any stage and even for the first time before this court though not pressed before the trial court and the appellate court by order dated 06 03 2019 this court referred the issue of juvenility of the appellants no 2 to 4 for consideration by the sessions court district sikar rajasthan the report in that behalf has since then been received according to which convicted accused appellants no 3 and 4 namely prahlad and ganesh respectively were juveniles on the day of the incident in view of the said assertion said convicts accused were directed to be released on bail which facility these two accused are still enjoying 10 we have heard mr ashok arora learned advocate for the appellants and mr harsha vinoy learned advocate for the state considering the totality of the circumstances on record it emerges a the deceased had died as a result of injuries which were suffered by a blunt object such as lathi b not a single injury could be associated with any sharp cutting weapon c similarly most of the injuries suffered by the injured prosecution witnesses were also by a blunt object d the record indicates that the place of occurrence was in an agricultural field situated at khasra no 210 e the evidence suggests that said agricultural field was a subject matter of dispute between the parties f two of the accused persons themselves also suffered injuries and some of those injuries were by sharp cutting weapons 11 g the incident was stated to have occurred when initially there was an exchange of words between the ladies which then got converted into an incident where blows were exchanged in the premises in our considered view the matter would be covered by exception fourthly to section 300 ipc and as such the crime in question would not be murder but culpable homicide not amounting to murder in the totality of the circumstances in our view all the accused would be principally guilty of the offences under section 304 ii and section 304 ii read with section 149 of the ipc we have been given to understand that the accused sita ram and mangla ram have completed about six years of sentence in the fitness of things the appropriate sentence for the principal offence under section 304 ii and 304 ii read with 149 of the ipc ought to be six years of imprisonment if the accused have completed six years of sentence they be released forth with 12 unless their custody is required in connection with any other offence as regards two of the accused namely prahlad and ganesh whose juvenility has been confirmed by the concerned sessions judge we direct that they be dealt with in terms of section 20 of the j j act 2000 and section 25 of the j j act 2015 with these observations the instant appeal stands allowed to the extent indicated hereinabove j uday umesh lalit j s ravindra bhat j bela m trivedi new delhi october 28 2021 316 2021_c a no 000073 000074 2021 the commission court new india assurance company limited hilli multipurpose cold storage 2020 5 2025 10 04 limited v hilli merchant v shrinath limited v hilli non reportable in the supreme court of india civil appellate jurisdiction civil appeal no s 73 74 of 2021 bhasin infotech and infrastructure private limited appellant s versus neema agarwal ors respondent s order these civil appeals arise out of a decision of the national consumer dispute redressal commission ncdrc delivered on 19th november 2020 dismissing an interim application of the appellants for filing written submission or reply to a consumer complaint the complaint was made on 15th march 2018 by the respondents alleging deficiency in service on the part of the appellants over cancellation of allotment of certain commercial units in a shopping mall notice was issued by the ncdrc to the application of the respondents under section 12 1 c of the consumer protection act 1986 which statute prevailed at the material point of time on 18th april 2019 when the matter was listed before the commission the appellants respondents before 1 the commission sought a week s time to reply on 23rd december 2019 the appellants filed reply to the application made under section 12 1 c of the 1986 act that application in substance was to make the complaint in representative capacity this application was allowed the commission had directed the appellants to file reply to the amended complaint within 30 days the matter was adjourned till 21st may 2020 the written submission was filed by the appellant to the consumer complaint along with an application for condonation of delay of 18 days in filing the written submission there is some dispute over the actual number of days of delay but that factor is not of much significance so far as the present appeal is concerned admitted position is that such delay was beyond the period of 45 days which is the prescribed period within which a reply has to be filed in terms of section 13 2 a read with section 18 of the 1986 act there were certain other interlocutory orders passed in the matter but these are not of much relevance for adjudication of the issues raised in the present appeals 2 by an order passed on 19th november 2020 the commission rejected the appellant s application for condonation of delay following a constitution bench decision of this court 2 delivered in a reference titled new india assurance company limited vs hilli multipurpose cold storage pvt ltd 2020 5 scc 757 in that judgment decided on 4th march 2020 and authored by one of us vineet saran j two questions were formulated by the constitution bench these were i whether the district forum has power to extend the time for filing of response to the complaint beyond the period of 15 days in addition to 30 days as envisaged under section 13 2 a of the consumer protection act ii what would be the commencing point of limitation of 30 days under section 13 of the consumer protection act 1986 the constitution bench answered these questions in the said judgment in following terms 41 to conclude we hold that our answer to the first question is that the district forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under section 13 of the consumer protection act and the answer to the second question is that the commencing point of limitation of 30 days under section 13 of the consumer protection act would be from the date of receipt of the notice accompanied with the complaint by the opposite party and not mere receipt of the notice of the complaint this judgment to operate prospectively the referred questions are answered accordingly 3 we would repeat here that the timeframe for filing written submission or reply is the same in respect of original complaints 3 in all the three fora constituted under the 1986 act as per section 18 thereof in these appeals we are concerned with the first question formulated by the constitution bench this question was referred to by a two judge bench of this court on 11th february 2016 in a civil appeal of the same appellants only subsequent to the reference order dated 11th february 2016 the question of jurisdiction of the consumer fora for extending time to file reply to complaint beyond stipulated period of 45 days came up for hearing before a coordinate bench in the case of reliance general insurance company limited and another vs mampee timbers and hardwares private limited and another 2021 3 scc 673 this order was passed on 10th february 2017 at that point of time the issue was pending for decision before the constitution bench the coordinate bench in the said order of 10th february 2017 observed and directed 5 we consider it appropriate to direct that pending decision of the larger bench it will be open to the fora concerned to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter 4 another bench of equal strength had examined the same point in the case of daddy s builders private limited and others vs manisha bhargava and others 2021 3 scc 669 4 in that case the state commission by an order dated 26th september 2018 had rejected an application filed by the applicants therein i e daddy s builders private limited supra seeking condonation of delay in filing reply to the consumer complaint beyond the period of 45 days the appeal against the order of rejection before the national commission was also dismissed on 4th september 2020 the petitioners came with further appeal before this court the appellants in that case pegged their argument on the observation made in the last paragraph of the constitution bench judgment that the said judgment would be applicable prospectively the appellants in that proceeding wanted to construe prospective operation of the judgment to mean that the view of the constitution bench against condonation of delay in filing reply beyond 45 days was not to be made applicable to the complaints filed before the respective fora before 4th march 2020 the order of the coordinate bench in the case of reliance general insurance company limited supra was also referred to in support of the contention of the appellants 5 the coordinate bench in the case of daddy s builders private limited supra did not accept the argument of the appellants that the ratio of the constitution bench would not 5 apply to complaints filed before the date of the constitution bench judgment i e 4th march 2020 it has been observed in the case of daddy s builders private limited supra 4 having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the state commission passed the order then on that date whether the state commission has the power to condone the delay beyond 45 days for filing the written statement under section 13 of the act is concerned as such the said issue whether the state commission has the power to condone the delay beyond 45 days is now not res integra in view of the constitution bench decision of this court in the case of new india assurance company limited v hilli multipurpose cold storage pvt ltd reported in 2020 5 scc 757 however it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and or the said decision shall not be applicable to the application for condonation of delay filed before the said decision 5 however the aforesaid cannot be accepted it is required to be noted that as per the decision of this court in j j merchant v shrinath chaturvedi reported in 2002 6 scc 635 which was a three judge bench decision consumer fora has no power to extend the time for filing a reply written statement beyond the period prescribed under the act however thereafter despite the above three judge bench decision a contrary view was taken by a two judge bench and therefore the matter was referred to the five judge bench and the constitution bench has reiterated the view taken in j j merchant supra and has again reiterated that the consumer fora has no power and or jurisdiction to accept the written statement beyond the statutory period prescribed under the act i e 45 days in all however it was found that in view of the order passed by this court in reliance general insurance co ltd reported in 2021 3 scc 673 dated 10 02 2017 pending the decision of the larger bench in some of the cases the state commission might have condoned the delay in filing the written statement filed beyond the 6 stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected this court observed in paragraph 63 that the decision of the constitution bench shall be applicable prospectively we say so because one of us was a party to the said decision of the constitution bench 6 now so far as the reliance placed upon the order passed by this court dated 10 02 2017 in reliance general insurance co ltd supra is concerned the same has been dealt with in detail by the national commission by the impugned order while deciding the first appeal as rightly observed by the national commission there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days the delay must be condoned and the written statement must be taken on record in order dated 10 02 2017 it is specifically mentioned that it will be open to the fora concerned to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter therefore ultimately it was left to the fora concerned to accept the written statement beyond the stipulated period of 45 days in an appropriate case 7 as observed by the national commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation therefore the national commission has considered the aspect of condonation of delay on merits also in any case in view of the earlier decision of this court in j j merchant supra and the subsequent authoritative decision of the constitution bench of this court in new india assurance company limited v hilli multipurpose cold storage pvt ltd supra consumer fora has no jurisdiction and or power to accept the written statement beyond the period of 45 days we see no reason to interfere with the impugned order passed by the learned national commission 6 in a subsequent appeal carrying the title dr a suresh kumar ors vs amit agarwal in civil appeal no 988 of 2021 decided on 8th july 2021 the appellants had filed their reply with 7 delay of seven days beyond 45 days the commission however had rejected the application for condonation of delay in filing written statement in view of the constitution bench judgment in this judgment a bench having strength equal to ours and to which one of us vineet saran j was a party examined what prospective operation of the constitution bench judgment would imply it was inter alia observed in this decision in our view since the application for condonation of delay was filed prior to the judgment of the constitution bench which was delivered on 04 03 2020 the said application for condonation of delay ought to have been considered on merits and should not have been dismissed on the basis of the constitution bench judgment in the case of new india assurance co limited supra because the said judgment was to operate prospectively and the written statement as well as the application for condonation of delay had been filed much prior to the said judgment 7 the said appeal was disposed of with the following observation and direction having heard learned counsel for the parties and after going through the record and for the reasons given in the application for condonation of delay filed before the ncdrc and also considering the fact that the delay was only for 7 days for which valid explanation has been given and with the consent of learned counsel for the parties we condone the delay of 7 days in filing the reply by the appellants before ncdrc but on payment of cost of rs 25 000 rupees twenty five thousand only the said cost shall be paid by the appellants to the respondent within 15 days from today in case the said payment is not made written statement already filed by the appellants on 25 11 2019 shall not be accepted however if the payment is made the written 8 statement shall be accepted by the ncdrc and every effort shall be made by the ncdrc to decide the complaint filed by the respondent as expeditiously as possible preferably within six months 8 two contrary views have emerged as regards what would be meant by the phrase this judgment to operate prospectively mandated in the constitution bench judgment in the case of daddy s builders private limited supra the application for condonation of delay had been rejected by the state commission prior to the constitution bench opinion on the aspect of power and jurisdiction of the consumer fora to condone delay beyond the stipulated 45 days in filing written submission reply the appeal against that decision was rejected by the ncdrc on 4th september 2020 following the constitution bench decision on prospective operation of the constitution bench judgment opinion of the coordinate bench in the case of daddy s builders private limited supra was that the prospective operation of the judgment would apply only in cases where delay stood condoned on a date prior to 4th march 2020 in expressing this view the coordinate bench noted that one of the members of the bench was also a party to the said constitution bench decision the position as regards composition of the bench is similar in the case of dr a suresh kumar supra and in that judgment a 9 more liberal approach has been adopted the prospectivity of the constitution bench decision has been held to cover cases where an application for condonation of delay was filed prior to the judgment of the constitution bench but whose outcome was yet to be determined at the time the constitution bench judgment was delivered 9 in our view the prospective operation of the judgment in the case of new india assurance company limited supra ought to cover both sets of the cases in which delay in filing written reply stood condoned after accepting the application for condonation of delay in filing written statement reply as well as the cases where the decision on condonation of delay in filing written replies were pending on 4th march 2020 once an application is filed for condonation of delay there may be cases where such applications are decided upon on dates earlier than applications already filed but yet to be determined we do not have any laid down administrative mechanism to decide in what manner applications of this nature would be decided and the consumer fora or the courts apply their own discretion on the basis of various relevant factors involved in individual cases to prioritise their hearing in our opinion it would be artificial distinction to distinguish 10 between applications for condonation of delay already decided before 4th march 2020 and the applications for condonation of delay pending on that date so far as persons with pending applications for condonation of delay in filing written replies are concerned their right to have their applications for condonation of delay in filing written replies to be considered would stand crystallised on 4th march 2020 such right has also been recognised in the case of reliance general insurance company limited supra such right could be extinguished only by specific legal provisions in the event the constitution bench judgment had altogether negated the right to have delay in filing written statement condoned beyond the period of 45 days the right of such applicants could stand extinguished but as the judgment of the constitution bench is to operate prospectively in our understanding of the said judgment those with pending applications for condonation of delay would retain their right to have their applications considered but we refrain from expressing any definitive opinion on this point as the two benches of equal strength have taken differing views on the manner in which the prospective application of the constitution bench judgment would 11 be affected in our opinion this issue ought to be decided by a larger bench 10 accordingly we direct the registry to place this order along with the cause papers before hon ble the chief justice of india for appropriate direction j vineet saran j aniruddha bose new delhi december 06 2021 12 non reportable in the supreme court of india civil appellate jurisdiction civil appeal no s 73 74 of 2021 bhasin infotech and infrastructure private limited appellant s versus neema agarwal ors respondent s order these civil appeals arise out of a decision of the national consumer dispute redressal commission ncdrc delivered on 19th november 2020 dismissing an interim application of the appellants for filing written submission or reply to a consumer complaint the complaint was made on 15th march 2018 by the respondents alleging deficiency in service on the part of the appellants over cancellation of allotment of certain commercial units in a shopping mall notice was issued by the ncdrc to the application of the respondents under section 12 1 c of the consumer protection act 1986 which statute prevailed at the material point of time on 18th april 2019 when the matter was listed before the commission the appellants respondents before 1 the commission sought a week s time to reply on 23rd december 2019 the appellants filed reply to the application made under section 12 1 c of the 1986 act that application in substance was to make the complaint in representative capacity this application was allowed the commission had directed the appellants to file reply to the amended complaint within 30 days the matter was adjourned till 21st may 2020 the written submission was filed by the appellant to the consumer complaint along with an application for condonation of delay of 18 days in filing the written submission there is some dispute over the actual number of days of delay but that factor is not of much significance so far as the present appeal is concerned admitted position is that such delay was beyond the period of 45 days which is the prescribed period within which a reply has to be filed in terms of section 13 2 a read with section 18 of the 1986 act there were certain other interlocutory orders passed in the matter but these are not of much relevance for adjudication of the issues raised in the present appeals 2 by an order passed on 19th november 2020 the commission rejected the appellant s application for condonation of delay following a constitution bench decision of this court 2 delivered in a reference titled new india assurance company limited vs hilli multipurpose cold storage pvt ltd 2020 5 scc 757 in that judgment decided on 4th march 2020 and authored by one of us vineet saran j two questions were formulated by the constitution bench these were i whether the district forum has power to extend the time for filing of response to the complaint beyond the period of 15 days in addition to 30 days as envisaged under section 13 2 a of the consumer protection act ii what would be the commencing point of limitation of 30 days under section 13 of the consumer protection act 1986 the constitution bench answered these questions in the said judgment in following terms 41 to conclude we hold that our answer to the first question is that the district forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under section 13 of the consumer protection act and the answer to the second question is that the commencing point of limitation of 30 days under section 13 of the consumer protection act would be from the date of receipt of the notice accompanied with the complaint by the opposite party and not mere receipt of the notice of the complaint this judgment to operate prospectively the referred questions are answered accordingly 3 we would repeat here that the timeframe for filing written submission or reply is the same in respect of original complaints 3 in all the three fora constituted under the 1986 act as per section 18 thereof in these appeals we are concerned with the first question formulated by the constitution bench this question was referred to by a two judge bench of this court on 11th february 2016 in a civil appeal of the same appellants only subsequent to the reference order dated 11th february 2016 the question of jurisdiction of the consumer fora for extending time to file reply to complaint beyond stipulated period of 45 days came up for hearing before a coordinate bench in the case of reliance general insurance company limited and another vs mampee timbers and hardwares private limited and another 2021 3 scc 673 this order was passed on 10th february 2017 at that point of time the issue was pending for decision before the constitution bench the coordinate bench in the said order of 10th february 2017 observed and directed 5 we consider it appropriate to direct that pending decision of the larger bench it will be open to the fora concerned to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter 4 another bench of equal strength had examined the same point in the case of daddy s builders private limited and others vs manisha bhargava and others 2021 3 scc 669 4 in that case the state commission by an order dated 26th september 2018 had rejected an application filed by the applicants therein i e daddy s builders private limited supra seeking condonation of delay in filing reply to the consumer complaint beyond the period of 45 days the appeal against the order of rejection before the national commission was also dismissed on 4th september 2020 the petitioners came with further appeal before this court the appellants in that case pegged their argument on the observation made in the last paragraph of the constitution bench judgment that the said judgment would be applicable prospectively the appellants in that proceeding wanted to construe prospective operation of the judgment to mean that the view of the constitution bench against condonation of delay in filing reply beyond 45 days was not to be made applicable to the complaints filed before the respective fora before 4th march 2020 the order of the coordinate bench in the case of reliance general insurance company limited supra was also referred to in support of the contention of the appellants 5 the coordinate bench in the case of daddy s builders private limited supra did not accept the argument of the appellants that the ratio of the constitution bench would not 5 apply to complaints filed before the date of the constitution bench judgment i e 4th march 2020 it has been observed in the case of daddy s builders private limited supra 4 having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the state commission passed the order then on that date whether the state commission has the power to condone the delay beyond 45 days for filing the written statement under section 13 of the act is concerned as such the said issue whether the state commission has the power to condone the delay beyond 45 days is now not res integra in view of the constitution bench decision of this court in the case of new india assurance company limited v hilli multipurpose cold storage pvt ltd reported in 2020 5 scc 757 however it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and or the said decision shall not be applicable to the application for condonation of delay filed before the said decision 5 however the aforesaid cannot be accepted it is required to be noted that as per the decision of this court in j j merchant v shrinath chaturvedi reported in 2002 6 scc 635 which was a three judge bench decision consumer fora has no power to extend the time for filing a reply written statement beyond the period prescribed under the act however thereafter despite the above three judge bench decision a contrary view was taken by a two judge bench and therefore the matter was referred to the five judge bench and the constitution bench has reiterated the view taken in j j merchant supra and has again reiterated that the consumer fora has no power and or jurisdiction to accept the written statement beyond the statutory period prescribed under the act i e 45 days in all however it was found that in view of the order passed by this court in reliance general insurance co ltd reported in 2021 3 scc 673 dated 10 02 2017 pending the decision of the larger bench in some of the cases the state commission might have condoned the delay in filing the written statement filed beyond the 6 stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected this court observed in paragraph 63 that the decision of the constitution bench shall be applicable prospectively we say so because one of us was a party to the said decision of the constitution bench 6 now so far as the reliance placed upon the order passed by this court dated 10 02 2017 in reliance general insurance co ltd supra is concerned the same has been dealt with in detail by the national commission by the impugned order while deciding the first appeal as rightly observed by the national commission there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days the delay must be condoned and the written statement must be taken on record in order dated 10 02 2017 it is specifically mentioned that it will be open to the fora concerned to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter therefore ultimately it was left to the fora concerned to accept the written statement beyond the stipulated period of 45 days in an appropriate case 7 as observed by the national commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation therefore the national commission has considered the aspect of condonation of delay on merits also in any case in view of the earlier decision of this court in j j merchant supra and the subsequent authoritative decision of the constitution bench of this court in new india assurance company limited v hilli multipurpose cold storage pvt ltd supra consumer fora has no jurisdiction and or power to accept the written statement beyond the period of 45 days we see no reason to interfere with the impugned order passed by the learned national commission 6 in a subsequent appeal carrying the title dr a suresh kumar ors vs amit agarwal in civil appeal no 988 of 2021 decided on 8th july 2021 the appellants had filed their reply with 7 delay of seven days beyond 45 days the commission however had rejected the application for condonation of delay in filing written statement in view of the constitution bench judgment in this judgment a bench having strength equal to ours and to which one of us vineet saran j was a party examined what prospective operation of the constitution bench judgment would imply it was inter alia observed in this decision in our view since the application for condonation of delay was filed prior to the judgment of the constitution bench which was delivered on 04 03 2020 the said application for condonation of delay ought to have been considered on merits and should not have been dismissed on the basis of the constitution bench judgment in the case of new india assurance co limited supra because the said judgment was to operate prospectively and the written statement as well as the application for condonation of delay had been filed much prior to the said judgment 7 the said appeal was disposed of with the following observation and direction having heard learned counsel for the parties and after going through the record and for the reasons given in the application for condonation of delay filed before the ncdrc and also considering the fact that the delay was only for 7 days for which valid explanation has been given and with the consent of learned counsel for the parties we condone the delay of 7 days in filing the reply by the appellants before ncdrc but on payment of cost of rs 25 000 rupees twenty five thousand only the said cost shall be paid by the appellants to the respondent within 15 days from today in case the said payment is not made written statement already filed by the appellants on 25 11 2019 shall not be accepted however if the payment is made the written 8 statement shall be accepted by the ncdrc and every effort shall be made by the ncdrc to decide the complaint filed by the respondent as expeditiously as possible preferably within six months 8 two contrary views have emerged as regards what would be meant by the phrase this judgment to operate prospectively mandated in the constitution bench judgment in the case of daddy s builders private limited supra the application for condonation of delay had been rejected by the state commission prior to the constitution bench opinion on the aspect of power and jurisdiction of the consumer fora to condone delay beyond the stipulated 45 days in filing written submission reply the appeal against that decision was rejected by the ncdrc on 4th september 2020 following the constitution bench decision on prospective operation of the constitution bench judgment opinion of the coordinate bench in the case of daddy s builders private limited supra was that the prospective operation of the judgment would apply only in cases where delay stood condoned on a date prior to 4th march 2020 in expressing this view the coordinate bench noted that one of the members of the bench was also a party to the said constitution bench decision the position as regards composition of the bench is similar in the case of dr a suresh kumar supra and in that judgment a 9 more liberal approach has been adopted the prospectivity of the constitution bench decision has been held to cover cases where an application for condonation of delay was filed prior to the judgment of the constitution bench but whose outcome was yet to be determined at the time the constitution bench judgment was delivered 9 in our view the prospective operation of the judgment in the case of new india assurance company limited supra ought to cover both sets of the cases in which delay in filing written reply stood condoned after accepting the application for condonation of delay in filing written statement reply as well as the cases where the decision on condonation of delay in filing written replies were pending on 4th march 2020 once an application is filed for condonation of delay there may be cases where such applications are decided upon on dates earlier than applications already filed but yet to be determined we do not have any laid down administrative mechanism to decide in what manner applications of this nature would be decided and the consumer fora or the courts apply their own discretion on the basis of various relevant factors involved in individual cases to prioritise their hearing in our opinion it would be artificial distinction to distinguish 10 between applications for condonation of delay already decided before 4th march 2020 and the applications for condonation of delay pending on that date so far as persons with pending applications for condonation of delay in filing written replies are concerned their right to have their applications for condonation of delay in filing written replies to be considered would stand crystallised on 4th march 2020 such right has also been recognised in the case of reliance general insurance company limited supra such right could be extinguished only by specific legal provisions in the event the constitution bench judgment had altogether negated the right to have delay in filing written statement condoned beyond the period of 45 days the right of such applicants could stand extinguished but as the judgment of the constitution bench is to operate prospectively in our understanding of the said judgment those with pending applications for condonation of delay would retain their right to have their applications considered but we refrain from expressing any definitive opinion on this point as the two benches of equal strength have taken differing views on the manner in which the prospective application of the constitution bench judgment would 11 be affected in our opinion this issue ought to be decided by a larger bench 10 accordingly we direct the registry to place this order along with the cause papers before hon ble the chief justice of india for appropriate direction j vineet saran j aniruddha bose new delhi december 06 2021 12 320 2021_slp crl no 000380 2021 madhya pradesh pre natal bail application no state of punjab 2020 07 12 india v state reportable in the supreme court of india criminal appellate jurisdiction special leave petition criminal no 380 of 2021 rekha sengar petitioner s versus state of madhya pradesh respondent s j u d g m e n t mohan m shantanagoudar j 1 by the impugned order passed by the madhya pradesh high court on 7 12 2020 in mcrc no 48262 of 2020 the petitioner s application for bail under section 439 of the code of criminal procedure 1973 cr p c has been rejected the record shows that an fir was registered against the petitioner and another person on 26 9 2020 in ps city kotwali morena madhya pradesh alleging their involvement in pre natal sex determination and abortion of female fetuses at their residence without the required registration or license under law the petitioner has been in custody since september 2020 her first application for bail bail application no 1203 2020 was rejected by the learned iv 2 addnl sessions judge morena on 01 10 2020 and her subsequent bail application before the high court mcrc 39649 2020 was dismissed as withdrawn on 14 10 2020 chargesheet was filed against the petitioner and the co accused on 6 11 2020 for offences under the certain relevant provisions of indian penal code medical termination of pregnancy act 1971 and under the provisions of the pre conception and pre natal diagnostic techniques regulation and prevention of misuse act 1994 pc pndt act trial is pending in the meanwhile the petitioner again approached the high court for grant of bail under section 439 cr p c the high court vide impugned order dated 7 12 2020 has denied bail on facts aggrieved the petitioner has approached this court seeking bail 2 the gravamen of the allegations against the petitioner pertain to violation of the provisions of the pc pndt act section 6 prohibits the use of pre natal diagnostic techniques including ultrasonography for determining the sex of a fetus section 23 provides that any violation of the provisions of the act constitutes a penal offence additionally section 27 stipulates that all offences under the said act are to be non bailable non compoundable and cognizable it is well settled that in non bailable cases the primary factors the court must consider while exercising the discretion to grant bail are the nature and gravity of the offence its impact on society and 3 whether there is a prima facie case against the accused 3 the charge sheet prima facie demonstrates the presence of a case against the petitioner a sting operation was conducted upon the order of the collector by the member of the pc pndt advisory committee gwalior the nodal officer pc pndnt and lady police officers the team used the services of an anonymous pregnant woman who approached the petitioner seeking sex determination of the fetus and sex selective abortion the petitioner accepted rs 7 000 for the same whereupon the team searched her residence from the residence an ultrasound machine with no registration or license adopter and gel used in sex determination and other medical instruments used during abortion and sex determination were seized this constitutes sufficient evidence to hold that there is a prima facie case against the petitioner 4 to understand the severity of the offence it is imperative to note the legislative history of the pc pndt act reference may be had to the preamble which states as follows an act to provide for the prohibition of sex selection before or after conception and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto 4 emphasis supplied the passage of this act was compelled by a cultural history of preference for the male child in india rooted in a patriarchal web of religious economic and social factors this has birthed numerous social evils such as female infanticide trafficking of young girls and bride buying and now with the advent of technology sex selection and female feticide the pervasiveness of this preference is reflected through the census data on the skewed sex ratio in india starting from the 1901 census which recorded 972 females per 1000 males there was an overall decline to 941 females in 1961 and 930 females in 1971 going further down to 927 females in 1991 records of lok sabha discussions on the pre natal diagnostic techniques regulation and prevention of misuse bill 1991 reflect various members concern with this alarming state of affairs which acted as a clarion call to the passage of the pc pndt act see lok sabha debates tenth series vol xxxiii no 2 july 26 1994 eleventh session at pages 506 544 the prevalence of pre natal sex selection and feticide has also attracted international censure and provoked calls for strict regulation in september 1995 the un 4th world conference on women adopted the beijing declaration and platform for action which inter alia declared female feticide and pre natal sex selection as forms 5 of violence against women see beijing declaration and platform for action adopted in 16th plenary meeting of un 4th world conference on women 15th september 1995 article 115 while the sex ratio has improved since after the passage of the pc pndt act rising to 933 as per the 2001 census and then to 943 in the 2011 census these pernicious practices still remain rampant as per the reply filed by the then minister of state health and family welfare in the rajya sabha on 27 3 2018 as of december 2017 around 3 986 court cases had been filed under the act resulting in only 449 convictions and 136 cases of suspension of medical licenses the unrelenting continuation of this immoral practice the globally shared understanding that it constitutes a form of violence against women and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our constitution are all factors that categorically establish pre natal sex determination as a grave offence with serious consequences for the society as a whole 5 we may also refer with benefit to the observations of this court in voluntary health association of india v state of punjab 2013 4 scc 1 as follows 6 above statistics is an indication that the provisions of the act are not properly and effectively being implemented there has been no effective supervision or follow up action so as to achieve the object and purpose of the act mushrooming of various sonography centres 6 genetic clinics genetic counselling centres genetic laboratories ultrasonic clinics imaging centres in almost all parts of the country calls for more vigil and attention by the authorities under the act but unfortunately their functioning is not being properly monitored or supervised by the authorities under the act or to find out whether they are misusing the pre natal diagnostic techniques for determination of sex of foetus leading to foeticide 7 seldom the ultrasound machines used for such sex determination in violation of the provisions of the act are seized and even if seized they are being released to the violators of the law only to repeat the crime hardly few cases end in conviction the cases booked under the act are pending disposal for several years in many courts in the country and nobody takes any interest in their disposal and hence seldom those cases end in conviction and sentences a fact well known to the violators of law in the present case contrary to the prevailing practice the investigative team has seized the sonography machine and made out a strong prima facie case against the petitioner therefore we find it imperative that no leniency should be granted at this stage as the same may reinforce the notion that the pc pndt act is only a paper tiger and that clinics and laboratories can carry out sex determination and feticide with impunity a strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society though it certainly remains open to the petitioner to disprove the merits of these allegations at the stage of trial 6 the fact that on 13 10 2020 the co accused in the present case 7 was released on bail by the high court in mcrc no 39380 2020 does not alter our conclusions the allegations in the fir and the charge sheet as well the disclosure statements made by the petitioner and the co accused under section 27 of the indian evidence act 1872 reveal that prima facie the petitioner had a more active role in conducting the alleged illegal medical practices of sex determination and sex selective abortion whereas the alleged role of the co accused was limited to merely picking up and dropping off the petitioner s clients hence we find no grounds for granting parity with the co accused to the petitioner 7 thus in view of the presence of prima facie evidence against the petitioner and other factors as referred to supra we find ourselves compelled to uphold the impugned order of the high court denying bail to the petitioner however in light of this court s directions in voluntary health association of india supra mandating speedy disposal of such cases it is open for the petitioner to request the trial court to expedite her trial and decide it within a period of 1 year 8 we make it clear that the above observations on facts are made only to decide the present petition any of the observations made on facts will not come in the way of the trial court to complete the trial and decide the matter the matter shall be decided by the trial court 8 on its own merits based on facts the special leave petition is dismissed accordingly j mohan m shantanagoudar j vineet saran j ajay rastogi new delhi january 21 2021 9 item no 13 court 10 video conferencing section ii a s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal crl no s 380 2021 arising out of impugned final judgment and order dated 07 12 2020 in mcrc no 48262 2020 passed by the high court of m p at gwalior smt rekha sengar petitioner s versus the state of madhya pradesh respondent s for admission and i r and ia no 4732 2021 exemption from filing c c of the impugned judgment and ia no 4736 2021 exemption from filing o t and ia no 4734 2021 exemption from filing affidavit date 21 01 2021 this petition was called on for hearing today coram hon ble mr justice mohan m shantanagoudar hon ble mr justice vineet saran hon ble mr justice ajay rastogi for petitioner s ms sakshi vijay adv mr tapendra sharma adv mr palav agarwal adv mr ashutosh kumar adv mr astik gupta adv mr mnan patel adv mr varun kumar adv mr triloki nath razdan aor for respondent s upon hearing the counsel the court made the following o r d e r heard learned counsel for the petitioners the special leave petition is dismissed in terms of the signed reportable judgment it is open for the petitioner to request the trial court to complete the trial within one year gulshan kumar arora r s narayanan astt registrar cum ps court master nsh signed reportable judgment is placed on the file reportable in the supreme court of india criminal appellate jurisdiction special leave petition criminal no 380 of 2021 rekha sengar petitioner s versus state of madhya pradesh respondent s j u d g m e n t mohan m shantanagoudar j 1 by the impugned order passed by the madhya pradesh high court on 7 12 2020 in mcrc no 48262 of 2020 the petitioner s application for bail under section 439 of the code of criminal procedure 1973 cr p c has been rejected the record shows that an fir was registered against the petitioner and another person on 26 9 2020 in ps city kotwali morena madhya pradesh alleging their involvement in pre natal sex determination and abortion of female fetuses at their residence without the required registration or license under law the petitioner has been in custody since september 2020 her first application for bail bail application no 1203 2020 was rejected by the learned iv 2 addnl sessions judge morena on 01 10 2020 and her subsequent bail application before the high court mcrc 39649 2020 was dismissed as withdrawn on 14 10 2020 chargesheet was filed against the petitioner and the co accused on 6 11 2020 for offences under the certain relevant provisions of indian penal code medical termination of pregnancy act 1971 and under the provisions of the pre conception and pre natal diagnostic techniques regulation and prevention of misuse act 1994 pc pndt act trial is pending in the meanwhile the petitioner again approached the high court for grant of bail under section 439 cr p c the high court vide impugned order dated 7 12 2020 has denied bail on facts aggrieved the petitioner has approached this court seeking bail 2 the gravamen of the allegations against the petitioner pertain to violation of the provisions of the pc pndt act section 6 prohibits the use of pre natal diagnostic techniques including ultrasonography for determining the sex of a fetus section 23 provides that any violation of the provisions of the act constitutes a penal offence additionally section 27 stipulates that all offences under the said act are to be non bailable non compoundable and cognizable it is well settled that in non bailable cases the primary factors the court must consider while exercising the discretion to grant bail are the nature and gravity of the offence its impact on society and 3 whether there is a prima facie case against the accused 3 the charge sheet prima facie demonstrates the presence of a case against the petitioner a sting operation was conducted upon the order of the collector by the member of the pc pndt advisory committee gwalior the nodal officer pc pndnt and lady police officers the team used the services of an anonymous pregnant woman who approached the petitioner seeking sex determination of the fetus and sex selective abortion the petitioner accepted rs 7 000 for the same whereupon the team searched her residence from the residence an ultrasound machine with no registration or license adopter and gel used in sex determination and other medical instruments used during abortion and sex determination were seized this constitutes sufficient evidence to hold that there is a prima facie case against the petitioner 4 to understand the severity of the offence it is imperative to note the legislative history of the pc pndt act reference may be had to the preamble which states as follows an act to provide for the prohibition of sex selection before or after conception and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto 4 emphasis supplied the passage of this act was compelled by a cultural history of preference for the male child in india rooted in a patriarchal web of religious economic and social factors this has birthed numerous social evils such as female infanticide trafficking of young girls and bride buying and now with the advent of technology sex selection and female feticide the pervasiveness of this preference is reflected through the census data on the skewed sex ratio in india starting from the 1901 census which recorded 972 females per 1000 males there was an overall decline to 941 females in 1961 and 930 females in 1971 going further down to 927 females in 1991 records of lok sabha discussions on the pre natal diagnostic techniques regulation and prevention of misuse bill 1991 reflect various members concern with this alarming state of affairs which acted as a clarion call to the passage of the pc pndt act see lok sabha debates tenth series vol xxxiii no 2 july 26 1994 eleventh session at pages 506 544 the prevalence of pre natal sex selection and feticide has also attracted international censure and provoked calls for strict regulation in september 1995 the un 4th world conference on women adopted the beijing declaration and platform for action which inter alia declared female feticide and pre natal sex selection as forms 5 of violence against women see beijing declaration and platform for action adopted in 16th plenary meeting of un 4th world conference on women 15th september 1995 article 115 while the sex ratio has improved since after the passage of the pc pndt act rising to 933 as per the 2001 census and then to 943 in the 2011 census these pernicious practices still remain rampant as per the reply filed by the then minister of state health and family welfare in the rajya sabha on 27 3 2018 as of december 2017 around 3 986 court cases had been filed under the act resulting in only 449 convictions and 136 cases of suspension of medical licenses the unrelenting continuation of this immoral practice the globally shared understanding that it constitutes a form of violence against women and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our constitution are all factors that categorically establish pre natal sex determination as a grave offence with serious consequences for the society as a whole 5 we may also refer with benefit to the observations of this court in voluntary health association of india v state of punjab 2013 4 scc 1 as follows 6 above statistics is an indication that the provisions of the act are not properly and effectively being implemented there has been no effective supervision or follow up action so as to achieve the object and purpose of the act mushrooming of various sonography centres 6 genetic clinics genetic counselling centres genetic laboratories ultrasonic clinics imaging centres in almost all parts of the country calls for more vigil and attention by the authorities under the act but unfortunately their functioning is not being properly monitored or supervised by the authorities under the act or to find out whether they are misusing the pre natal diagnostic techniques for determination of sex of foetus leading to foeticide 7 seldom the ultrasound machines used for such sex determination in violation of the provisions of the act are seized and even if seized they are being released to the violators of the law only to repeat the crime hardly few cases end in conviction the cases booked under the act are pending disposal for several years in many courts in the country and nobody takes any interest in their disposal and hence seldom those cases end in conviction and sentences a fact well known to the violators of law in the present case contrary to the prevailing practice the investigative team has seized the sonography machine and made out a strong prima facie case against the petitioner therefore we find it imperative that no leniency should be granted at this stage as the same may reinforce the notion that the pc pndt act is only a paper tiger and that clinics and laboratories can carry out sex determination and feticide with impunity a strict approach has to be adopted if we are to eliminate the scourge of female feticide and iniquity towards girl children from our society though it certainly remains open to the petitioner to disprove the merits of these allegations at the stage of trial 6 the fact that on 13 10 2020 the co accused in the present case 7 was released on bail by the high court in mcrc no 39380 2020 does not alter our conclusions the allegations in the fir and the charge sheet as well the disclosure statements made by the petitioner and the co accused under section 27 of the indian evidence act 1872 reveal that prima facie the petitioner had a more active role in conducting the alleged illegal medical practices of sex determination and sex selective abortion whereas the alleged role of the co accused was limited to merely picking up and dropping off the petitioner s clients hence we find no grounds for granting parity with the co accused to the petitioner 7 thus in view of the presence of prima facie evidence against the petitioner and other factors as referred to supra we find ourselves compelled to uphold the impugned order of the high court denying bail to the petitioner however in light of this court s directions in voluntary health association of india supra mandating speedy disposal of such cases it is open for the petitioner to request the trial court to expedite her trial and decide it within a period of 1 year 8 we make it clear that the above observations on facts are made only to decide the present petition any of the observations made on facts will not come in the way of the trial court to complete the trial and decide the matter the matter shall be decided by the trial court 8 on its own merits based on facts the special leave petition is dismissed accordingly j mohan m shantanagoudar j vineet saran j ajay rastogi new delhi january 21 2021 9 item no 13 court 10 video conferencing section ii a s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal crl no s 380 2021 arising out of impugned final judgment and order dated 07 12 2020 in mcrc no 48262 2020 passed by the high court of m p at gwalior smt rekha sengar petitioner s versus the state of madhya pradesh respondent s for admission and i r and ia no 4732 2021 exemption from filing c c of the impugned judgment and ia no 4736 2021 exemption from filing o t and ia no 4734 2021 exemption from filing affidavit date 21 01 2021 this petition was called on for hearing today coram hon ble mr justice mohan m shantanagoudar hon ble mr justice vineet saran hon ble mr justice ajay rastogi for petitioner s ms sakshi vijay adv mr tapendra sharma adv mr palav agarwal adv mr ashutosh kumar adv mr astik gupta adv mr mnan patel adv mr varun kumar adv mr triloki nath razdan aor for respondent s upon hearing the counsel the court made the following o r d e r heard learned counsel for the petitioners the special leave petition is dismissed in terms of the signed reportable judgment it is open for the petitioner to request the trial court to complete the trial within one year gulshan kumar arora r s narayanan astt registrar cum ps court master nsh signed reportable judgment is placed on the file 341 2019_c a no 005819 005822 2021 the high court bangalore cpc shri k v shri gopal sankaranarayanan shri gopal jain 2018 09 14 5822 of 2021 dahiben v arvindbhai arivandandam v t v ltd v manorama arivandandam v t v hussain v rajiv hussain v rajiv jadeja v vijaykunverba ltd v m v reportable in the supreme court of india civil appellate jurisdiction civil appeal nos 5819 5822 of 2021 arising out of slp c nos 2779 2782 of 2019 rajendra bajoria and others appellant s versus hemant kumar jalan and others respondent s j u d g m e n t b r gavai j 1 leave granted 2 these appeals challenge the judgment and order passed by the division bench of the high court of calcutta dated 14th september 2018 thereby allowing the appeals being apo nos 491 and 520 of 2017 filed by the respondents defendants challenging the order passed by the single judge of the high court of calcutta dated 22nd september 2017 vide the said order dated 22nd september 2017 the single judge had 1 dismissed g a nos 1688 and 1571 of 2017 filed by the original defendants seeking dismissal of the suit alternatively for rejection of the plaint as well as for revocation of the leave granted under clause 12 of the letters patent in the instant suit being c s no 79 of 2017 3 a partnership firm namely soorajmull nagarmull hereinafter referred to as the partnership firm was constituted under a deed of partnership dated 6th december 1943 baijnath jalan mohanlal jalan babulal jalan sewbhagwan jalan keshabdeo jalan nandkishore jalan deokinandan jalan chiranjilal bajoria and kishorilal jalan were the partners in the partnership firm it is not in dispute that none of the partners are alive plaintiff nos 1 2 and 3 are the sons of late chiranjilal bajoria who died on 31st december 1981 plaintiff nos 4 and 5 are the sons of late deokinandan jalan who died on 12th july 1997 plaintiff no 6 is the son of late mohanlal jalan who died on 1st may 1982 the defendants are the legal heirs of the other original partners in the partnership firm 2 4 a civil suit being c s no 79 of 2017 came to be filed by the plaintiffs before the calcutta high court seeking inter alia the following reliefs a decree for declaration that the plaintiffs along with the defendants are entitled to the assets and properties of the firm soorajmull nagarmull as the heirs of the original partners of the reconstituted firm under the partnership deed dated 6th december 1943 in the share of the said original partners as mentioned in paragraph 3 above b decree for declaration that the plaintiffs along with the defendants are consequently entitled to represent the firm in all proceedings before the concerned authorities of the state of bihar for the acquisition of its bhagalpur land c decree for perpetual injunction restraining the defendant no 1 or any of the other defendants from in any manner representing or holding themselves out to be the authorised representative of the firm or the repository of all its authority moneys assets and properties or from seeking to represent the firm in its dealings and transactions in respect of any of its assets and properties including the acquisition proceeding of the firm s bhagalpur land or from receiving any monies on behalf of the firm whether 3 on account of compensation for its bhagalpur land or otherwise d decree for mandatory injunction directing the defendant no 1 to disclose full particulars of all assets and properties of the firm full particulars of all its dealings and transactions including any dealing or transaction concerning any asset or property of the firm and full accounts of the firm for the purpose of its dissolution e decree for the dissolution of the firm soorajmull nagarmull and for the winding up of its affairs upon realising the assets and properties of the firm collecting all moneys due to the firm applying the same in paying the debts of the firm if any in paying the capital contributed by any partner and thereafter by dividing the residue amongst the heirs of the original partners in the shares to which they were entitled to the profits of the firm in terms of the partnership deed dated 6th december 1943 5 in the said suit the defendants filed two applications being g a nos 1688 and 1571 of 2017 inter alia seeking dismissal of the suit or in the alternative rejection of the plaint on the ground that the plaint does not disclose any cause of action and the relief as claimed in the plaint could not be granted it was also urged on behalf of the defendants that the 4 suit was filed beyond the period of limitation and as such was also liable to be rejected on the said ground the single judge vide judgment and order dated 22nd september 2017 dismissed the said applications insofar as the ground with regard to limitation is concerned the single judge found that the issue of limitation was a mixed question of fact and law and did not consider the prayer of the defendants on that ground being aggrieved thereby the original defendants filed appeals being apo nos 491 and 520 of 2017 before the division bench of the high court the division bench of the high court by the impugned judgment and order dated 14th september 2018 held that the reliefs as claimed in the plaint could not be granted and therefore while allowing the appeals rejected the plaint being c s no 79 of 2017 it however observed that as provided under order vii rule 13 of the civil procedure code hereinafter referred to as the cpc the order of rejection of the plaint shall not of its own force preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action being aggrieved thereby the present appeals 5 6 we have heard shri gopal jain learned senior counsel appearing on behalf of the appellants dr a m singhvi learned senior counsel appearing on behalf of the respondent no 1 and shri k v viswanathan and shri gopal sankaranarayanan learned senior counsel appearing on behalf of the respondent nos 2 3 7 to 9 11 12 and 16 to 21 7 shri gopal jain learned senior counsel appearing on behalf of the appellants submitted that the division bench of the high court of calcutta has grossly erred in allowing the appeals and reversing the well reasoned judgment and order passed by the single judge of the high court of calcutta shri jain submitted that the single judge after reading the averments in the plaint had rightly come to the conclusion that the plaint discloses cause of action and as such could not be rejected under order vii rule 11 of cpc he submitted that the division bench in the impugned judgment and order has almost conducted a mini trial to find out as to whether the relief as claimed in the plaint could be granted or not he submitted that such an exercise is impermissible while considering an 6 application under order vii rule 11 of cpc the learned senior counsel relying on the judgment of this court in the case of dahiben v arvindbhai kalyanji bhanusali gajra dead through legal representatives and others1 submitted that the power conferred on the court to terminate a civil action is a drastic one he submitted that such a power cannot be routinely exercised the learned senior counsel submitted that for finding out as to whether the cause of action exists or not it is necessary to read the averments made in the plaint in their entirety and not in piecemeal shri jain therefore submitted that the impugned judgment and order is not sustainable and is liable to be set aside 8 dr singhvi learned senior counsel appearing on behalf of the respondent no 1 submitted that if the averments made in the plaint were read in juxtaposition with the provisions of sections 40 42 43 44 and 48 of the indian partnership act 1932 hereinafter referred to as the said act read with clauses in the partnership deed dated 6th december 1943 it would 1 2020 7 scc 366 7 reveal that none of the reliefs as claimed in the plaint could be granted he submitted that as per section 40 of the said act a firm can be dissolved only with the consent of all the partners or in accordance with the contract between the partners he submitted that though under section 42 of the said act a firm could be dissolved on the death of a partner however this is subjected to a contract between the partners he submitted that a perusal of clause 4 of the partnership deed dated 6th december 1943 would show that it specifically provides that upon the death of any partner the partnership shall not be automatically dissolved as such the submission in that regard is without merit he submitted that section 44 of the said act provides that the dissolution of the firm could be maintained on the ground specified therein only if the suit is at the instance of the partners he submitted that admittedly the plaintiffs were not the partners and as such the suit at their instance was not tenable the learned senior counsel relies on the judgments of this court in the cases of t arivandandam v t v satyapal 8 and another2 and pearlite liners p ltd v manorama sirsi3 in support of his submission that if the reliefs as sought in the plaint cannot be granted then the only option available to the court is to reject the plaint 9 shri viswanathan and shri gopal sankaranarayanan learned senior counsel appearing on behalf of respondent nos 2 3 7 to 9 11 12 and 16 to 21 also made similar submissions 10 it will be relevant to refer to sections 40 42 43 and 44 of the said act 40 dissolution by agreement a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners 41 42 dissolution on the happening of certain contingencies subject to contract between the partners a firm is dissolved a if constituted for a fixed term by the expiry of the term b if constituted to carry out one or more adventures or undertakings by the completion thereof 2 1977 4 scc 467 3 2004 3 scc 172 9 c by the death of a partner and d by the adjudication of a partner as an insolvent 43 dissolution by notice of partnership at will where the partnership is at will the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm 2 the firm is dissolved as from the date mentioned in the notice as the date of dissolution or if no date is so mentioned as from the date of the communication of the notice 44 dissolution by the court at the suit of a partner the court may dissolve a firm on any of following grounds namely a that a partner has become of unsound mind in which case the suit may be brought as well by the next friend of the partner who has become of unsound mind as by any other partner b that a partner other than the partner suing has become in any way permanently incapable of performing his duties as partner c that a partner other than the partner suing is guilty of conduct which is likely to affect prejudicially the carrying on of the business regard being had to the nature of the business d that a partner other than the partner suing willfully or persistently 10 commits breach of agreements relating to the management of the affairs of the firm or the conduct of its business or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other partners to carry on the business in partnership with him e that a partner other than the partner suing has in any way transferred the whole of his interest in the firm to a third party or has allowed his share to be charged under the provisions of rule 49 of order xxi of the first schedule to the code of civil procedure 1908 5 of 1908 or has allowed it to be sold in the recovery of arrears of land revenue or of any dues recoverable as arrears of land revenue due by the partner f that the business of the firm cannot be carried on save at a loss or g on any other ground which renders it just and equitable that the firm should be dissolved 11 it will also be relevant to refer to clauses 4 6 and 7 of the partnership deed dated 6th december 1943 4 that upon the death of any partner the partnership shall not be automatically dissolved but the surviving partners may admit the legal representative of the 11 deceased unto the partnership by mutual consent 5 6 in case of death of any partner or retirement during the continuance of the partnership shall be deemed to exist only upto to the end of the accounting period of the year during which the death or retirement occurs and the estate of the deceased partner or the retiring partner shall be entitled to receive and be responsible for all profits and losses of the partnership up to the end of the accounting period as the case may be 7 this indenture further witnesseth that the said parties hereto hereby mutually covenant and agree that they will carry on the said business in partnership until dissolution under and in accordance with the provisions and stipulation hereinabefore stated or contained in the said indenture dated the 1st day of september 1938 so far as the same respectively are now subsisting and capable of taking and are applicable to the altered circumstances hereinbefore appearing and any dispute in relation to the said partnership shall be decided by arbitration according to the provisions of the indian arbitration and for that purpose each of the disputing parties may nominate one arbitrator provided however that none of the parties hereto shall at any time be entitled to apply to any court of law for the dissolution of the partnership or for appointment of a receiver over the partnership or any portion of its assets 12 12 from the perusal of the plaint it could be gathered that the case of the plaintiffs is that in spite of demise of the three original partners of the partnership firm through whom the plaintiffs were claiming the defendants have been carrying on the business of the partnership firm it is their case that the accounts of the partnership firm have not been finalized and that the share of the profits of the partnership firm has not been paid to them it is also the case of the plaintiffs that the defendants are seeking to represent the partnership firm to the exclusion of the plaintiffs and that the defendants are siphoning off funds of the partnership firm it is their case that they along with the defendants are entitled to the assets and properties of the partnership firm as legal heirs of the original partners of the partnership firm reconstituted under the partnership deed dated 6th december 1943 13 no doubt that it is rightly contended on behalf of the plaintiffs that only on the basis of the averments made in the plaint it could be ascertained as to whether a cause of action is 13 made out or not it is equally true that for finding out the same the entire pleadings in the plaint will have to be read and that too at their face value at this stage the defence taken by the defendants cannot be looked into 14 we may gainfully refer to the observations of this court in the case of t arivandandam v t v satyapal and another supra 5 we have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to from the statement of the facts found in the judgment of the high court it is perfectly plain that the suit now pending before the first munsif s court bangalore is a flagrant misuse of the mercies of the law in receiving plaints the learned munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue he should exercise his power under order 7 rule 11 cpc taking care to see that the ground mentioned therein is fulfilled and if clever drafting has created the illusion of a cause of action nip it in the bud at the first hearing by examining the party searchingly under order 10 cpc an activist judge is the 14 answer to irresponsible law suits the trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage the penal code is also resourceful enough to meet such men cr xi and must be triggered against them in this case the learned judge to his cost realised what george bernard shaw remarked on the assassination of mahatma gandhi it is dangerous to be too good emphasis supplied 15 it could thus be seen that this court has held that reading of the averments made in the plaint should not only be formal but also meaningful it has been held that if clever drafting has created the illusion of a cause of action and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless in the sense of not disclosing a clear right to sue then the court should exercise its power under order vii rule 11 of cpc it has been held that such a suit has to be nipped in the bud at the first hearing itself 15 16 it will also be apposite to refer to the following observations of this court in the case of pearlite liners p ltd supra 10 the question arises as to whether in the background of the facts already stated such reliefs can be granted to the plaintiff unless there is a term to the contrary in the contract of service a transfer order is a normal incidence of service further it is to be considered that if the plaintiff does not comply with the transfer order it may ultimately lead to termination of service therefore a declaration that the transfer order is illegal and void in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant company such a relief cannot be granted next relief sought in the plaint is for a declaration that she continues to be in service of the defendant company such a declaration again amounts to enforcing a contract of personal service which is barred under the law the third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her if the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her the management cannot be restrained from exercising its discretion in this behalf ultimately this relief if granted would indirectly mean that the court is 16 assisting the plaintiff in continuing with her employment with the defendant company which is nothing but enforcing a contract of personal service thus none of the reliefs sought in the plaint can be granted to the plaintiff under the law the question then arises as to whether such a suit should be allowed to continue and go for trial the answer in our view is clear that is such a suit should be thrown out at the threshold why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for be tried at all accordingly we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf the high court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits the judgment of the high court is hereby set aside and the judgments of the courts below that is the trial court and the lower appellate court are restored the plaint in the suit stands rejected emphasis supplied 17 it could thus be seen that the court has to find out as to whether in the background of the facts the relief as claimed in the plaint can be granted to the plaintiff it has been held that if the court finds that none of the reliefs sought in the plaint 17 can be granted to the plaintiff under the law the question then arises is as to whether such a suit is to be allowed to continue and go for trial this court answered the said question by holding that such a suit should be thrown out at the threshold this court therefore upheld the order passed by the trial court of rejecting the suit and that of the appellate court thereby affirming the decision of the trial court this court set aside the order passed by the high court wherein the high court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court 18 therefore the question that will have to be considered is as to whether the reliefs as claimed in the plaint by the plaintiffs could be granted or not we do not propose to do that exercise inasmuch as the division bench of the high court has elaborately considered the issue as to whether applying the provisions of the said act read with the aforesaid clauses in the partnership deed the reliefs as claimed in the plaint could be 18 granted or not the relevant discussion by the high court reads thus 31 let us take the prayers one by one the first prayer is for a declaration that the plaintiffs and the defendants are entitled to the assets and properties of the said firm as the legal heirs of the original partners it is trite law that the partners of a firm are entitled only to the profits of the firm and upon dissolution of the firm they are entitled to the surplus of the sale proceeds of the assets and properties of the firm if any after meeting the liabilities of the firm in the share agreed upon in the partnership deed the partners do not have any right title or interest in respect of the assets and properties of a firm so long as the firm is carrying on business hence the plaintiffs as legal heirs of some of the original partners cannot maintain any claim in respect of the assets and properties of the said firm their prayer for declaration of co ownership of the assets and properties of the said firm is not maintainable in law the second prayer in the plaint is for a declaration that the plaintiffs along with the defendants are entitled to represent the firm in all proceedings before the concerned authorities of the state of bihar for the acquisition of its bhagalpur land the framing of this prayer shows that this is a consequential relief claimed by the plaintiffs which can only be granted if the first prayer is allowed since in our opinion prayer a of the plaint cannot be granted in law prayer 19 b also cannot be granted prayer c is also a consequential relief only if the plaintiffs were entitled to claim prayer a they could claim prayer c we are not on whether or not the plaintiffs will succeed in obtaining prayer a according to us the plaintiffs are not even entitled to pray for the first relief indicated above as the same cannot be granted under the law of the land consequently prayer c also cannot be granted prayers d and e both pertain to dissolution of the firm prayer e is for a decree of dissolution and for winding up of the affairs of the firm prayer d is for full accounts of the firm for the purpose of its dissolution emphasis is ours however it is settled law that only the partners of a firm can seek dissolution of the firm admittedly the plaintiffs are not partners of the said firm sec 39 of the partnership act provides that the dissolution of partnership between all the partners of a firm is called the dissolution of the firm sec 40 provides that a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners sec 41 provides for compulsory dissolution of a firm sec 42 stipulates that happening of certain contingencies will cause dissolution of a firm but this is subject to contract between the partners a partnership at will may be dissolved by any partner giving notice in writing to the other partners of his intention to dissolve the firm as provided in sec 43 of the act sec 44 empowers the court to dissolve a firm on the grounds mentioned therein on a suit of a partner 20 thus it is clear that it is only a partner of a firm who can seek dissolution of the firm the dissolution of a firm cannot be ordered by the court at the instance of a non partner hence the plaintiffs are not entitled to claim dissolution of the said firm consequently they are also not entitled to pray for accounts for the purpose of dissolution of the firm 32 what should the court do if it finds that even taking the averments in the plaint at face value not one of the reliefs claimed in the plaint can be granted should the court send the parties to trial we think not it will be an exercise in futility it will be a waste of time money and energy for both the plaintiffs and the defendants as well as unnecessary consumption of court s time it will not be fair to compel the defendants to go through the ordinarily long drawn process of trial of a suit at huge expense not to speak of the anxiety and un peace of mind caused by a litigation hanging over one s head like the damocles s sword no purpose will be served by allowing the suit to proceed to trial since the prayers as framed cannot be allowed on the basis of the pleadings in the plaint the plaintiffs have not prayed for leave to amend the plaint when the court is of the view just by reading the plaint alone and assuming the averments made in the plaint to be correct that none of the reliefs claimed can be granted in law since the plaintiffs are not entitled to claim such reliefs the court should reject the plaint as disclosing no cause of action the reliefs claimed in a plaint flow from and are the culmination of the cause of action pleaded in 21 the plaint the cause of action pleaded and the prayers made in a plaint are inextricably intertwined in the present case the cause of action pleaded and the reliefs claimed are not recognized by the law of the land such a suit should not be kept alive to go to trial 19 we are in complete agreement with the findings of the high court insofar as the reliance placed by shri jain on the judgment of this court in the case of dahiben supra to which one of us l nageswara rao j was a member is concerned in our view the said judgment rather than supporting the case of the plaintiffs would support the case of the defendants paragraphs 23 3 23 4 23 5 and 23 6 in the case of dahiben supra read thus 23 3 the underlying object of order 7 rule 11 a is that if in a suit no cause of action is disclosed or the suit is barred by limitation under rule 11 d the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit in such a case it would be necessary to put an end to the sham litigation so that further judicial time is not wasted 22 23 4 in azhar hussain v rajiv gandhi azhar hussain v rajiv gandhi 1986 supp scc 315 followed in manvendrasinhji ranjitsinhji jadeja v vijaykunverba 1998 scc onlineguj281 1998 2 glh 823 this court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to waste judicial time of the court in the following words scc p 324 para 12 12 the whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent the sword of damocles need not be kept hanging over his head unnecessarily without point or purpose even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action 23 5 the power conferred on the court to terminate a civil action is however a drastic one and the conditions enumerated in order 7 rule 11 are required to be strictly adhered to 23 23 6 under order 7 rule 11 a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint liverpool london s p i assn ltd v m v sea success i 2004 9 scc 512 read in conjunction with the documents relied upon or whether the suit is barred by any law 20 it could thus be seen that this court has held that the power conferred on the court to terminate a civil action is a drastic one and the conditions enumerated under order vii rule 11 of cpc are required to be strictly adhered to however under order vii rule 11 of cpc the duty is cast upon the court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint read in conjunction with the documents relied upon or whether the suit is barred by any law this court has held that the underlying object of order vii rule 11 of cpc is that when a plaint does not disclose a cause of action the court would not permit the plaintiff to unnecessarily protract the proceedings it has been held that in such a case it will be necessary to put an end to the sham litigation so that further judicial time is not wasted 24 21 we are in agreement with the division bench of the calcutta high court which upon an elaborate scrutiny of the averments made in the plaint the reliefs claimed therein the provisions of the said act and the clauses of the partnership deed came to the conclusion that the reliefs as sought in the plaint cannot be granted 22 the appeals are found to be without merit and as such are dismissed pending application s if any shall stand disposed of no costs j l nageswara rao j b r gavai new delhi september 21 2021 25 reportable in the supreme court of india civil appellate jurisdiction civil appeal nos 5819 5822 of 2021 arising out of slp c nos 2779 2782 of 2019 rajendra bajoria and others appellant s versus hemant kumar jalan and others respondent s j u d g m e n t b r gavai j 1 leave granted 2 these appeals challenge the judgment and order passed by the division bench of the high court of calcutta dated 14th september 2018 thereby allowing the appeals being apo nos 491 and 520 of 2017 filed by the respondents defendants challenging the order passed by the single judge of the high court of calcutta dated 22nd september 2017 vide the said order dated 22nd september 2017 the single judge had 1 dismissed g a nos 1688 and 1571 of 2017 filed by the original defendants seeking dismissal of the suit alternatively for rejection of the plaint as well as for revocation of the leave granted under clause 12 of the letters patent in the instant suit being c s no 79 of 2017 3 a partnership firm namely soorajmull nagarmull hereinafter referred to as the partnership firm was constituted under a deed of partnership dated 6th december 1943 baijnath jalan mohanlal jalan babulal jalan sewbhagwan jalan keshabdeo jalan nandkishore jalan deokinandan jalan chiranjilal bajoria and kishorilal jalan were the partners in the partnership firm it is not in dispute that none of the partners are alive plaintiff nos 1 2 and 3 are the sons of late chiranjilal bajoria who died on 31st december 1981 plaintiff nos 4 and 5 are the sons of late deokinandan jalan who died on 12th july 1997 plaintiff no 6 is the son of late mohanlal jalan who died on 1st may 1982 the defendants are the legal heirs of the other original partners in the partnership firm 2 4 a civil suit being c s no 79 of 2017 came to be filed by the plaintiffs before the calcutta high court seeking inter alia the following reliefs a decree for declaration that the plaintiffs along with the defendants are entitled to the assets and properties of the firm soorajmull nagarmull as the heirs of the original partners of the reconstituted firm under the partnership deed dated 6th december 1943 in the share of the said original partners as mentioned in paragraph 3 above b decree for declaration that the plaintiffs along with the defendants are consequently entitled to represent the firm in all proceedings before the concerned authorities of the state of bihar for the acquisition of its bhagalpur land c decree for perpetual injunction restraining the defendant no 1 or any of the other defendants from in any manner representing or holding themselves out to be the authorised representative of the firm or the repository of all its authority moneys assets and properties or from seeking to represent the firm in its dealings and transactions in respect of any of its assets and properties including the acquisition proceeding of the firm s bhagalpur land or from receiving any monies on behalf of the firm whether 3 on account of compensation for its bhagalpur land or otherwise d decree for mandatory injunction directing the defendant no 1 to disclose full particulars of all assets and properties of the firm full particulars of all its dealings and transactions including any dealing or transaction concerning any asset or property of the firm and full accounts of the firm for the purpose of its dissolution e decree for the dissolution of the firm soorajmull nagarmull and for the winding up of its affairs upon realising the assets and properties of the firm collecting all moneys due to the firm applying the same in paying the debts of the firm if any in paying the capital contributed by any partner and thereafter by dividing the residue amongst the heirs of the original partners in the shares to which they were entitled to the profits of the firm in terms of the partnership deed dated 6th december 1943 5 in the said suit the defendants filed two applications being g a nos 1688 and 1571 of 2017 inter alia seeking dismissal of the suit or in the alternative rejection of the plaint on the ground that the plaint does not disclose any cause of action and the relief as claimed in the plaint could not be granted it was also urged on behalf of the defendants that the 4 suit was filed beyond the period of limitation and as such was also liable to be rejected on the said ground the single judge vide judgment and order dated 22nd september 2017 dismissed the said applications insofar as the ground with regard to limitation is concerned the single judge found that the issue of limitation was a mixed question of fact and law and did not consider the prayer of the defendants on that ground being aggrieved thereby the original defendants filed appeals being apo nos 491 and 520 of 2017 before the division bench of the high court the division bench of the high court by the impugned judgment and order dated 14th september 2018 held that the reliefs as claimed in the plaint could not be granted and therefore while allowing the appeals rejected the plaint being c s no 79 of 2017 it however observed that as provided under order vii rule 13 of the civil procedure code hereinafter referred to as the cpc the order of rejection of the plaint shall not of its own force preclude the plaintiffs from presenting a fresh plaint in respect of the same cause of action being aggrieved thereby the present appeals 5 6 we have heard shri gopal jain learned senior counsel appearing on behalf of the appellants dr a m singhvi learned senior counsel appearing on behalf of the respondent no 1 and shri k v viswanathan and shri gopal sankaranarayanan learned senior counsel appearing on behalf of the respondent nos 2 3 7 to 9 11 12 and 16 to 21 7 shri gopal jain learned senior counsel appearing on behalf of the appellants submitted that the division bench of the high court of calcutta has grossly erred in allowing the appeals and reversing the well reasoned judgment and order passed by the single judge of the high court of calcutta shri jain submitted that the single judge after reading the averments in the plaint had rightly come to the conclusion that the plaint discloses cause of action and as such could not be rejected under order vii rule 11 of cpc he submitted that the division bench in the impugned judgment and order has almost conducted a mini trial to find out as to whether the relief as claimed in the plaint could be granted or not he submitted that such an exercise is impermissible while considering an 6 application under order vii rule 11 of cpc the learned senior counsel relying on the judgment of this court in the case of dahiben v arvindbhai kalyanji bhanusali gajra dead through legal representatives and others1 submitted that the power conferred on the court to terminate a civil action is a drastic one he submitted that such a power cannot be routinely exercised the learned senior counsel submitted that for finding out as to whether the cause of action exists or not it is necessary to read the averments made in the plaint in their entirety and not in piecemeal shri jain therefore submitted that the impugned judgment and order is not sustainable and is liable to be set aside 8 dr singhvi learned senior counsel appearing on behalf of the respondent no 1 submitted that if the averments made in the plaint were read in juxtaposition with the provisions of sections 40 42 43 44 and 48 of the indian partnership act 1932 hereinafter referred to as the said act read with clauses in the partnership deed dated 6th december 1943 it would 1 2020 7 scc 366 7 reveal that none of the reliefs as claimed in the plaint could be granted he submitted that as per section 40 of the said act a firm can be dissolved only with the consent of all the partners or in accordance with the contract between the partners he submitted that though under section 42 of the said act a firm could be dissolved on the death of a partner however this is subjected to a contract between the partners he submitted that a perusal of clause 4 of the partnership deed dated 6th december 1943 would show that it specifically provides that upon the death of any partner the partnership shall not be automatically dissolved as such the submission in that regard is without merit he submitted that section 44 of the said act provides that the dissolution of the firm could be maintained on the ground specified therein only if the suit is at the instance of the partners he submitted that admittedly the plaintiffs were not the partners and as such the suit at their instance was not tenable the learned senior counsel relies on the judgments of this court in the cases of t arivandandam v t v satyapal 8 and another2 and pearlite liners p ltd v manorama sirsi3 in support of his submission that if the reliefs as sought in the plaint cannot be granted then the only option available to the court is to reject the plaint 9 shri viswanathan and shri gopal sankaranarayanan learned senior counsel appearing on behalf of respondent nos 2 3 7 to 9 11 12 and 16 to 21 also made similar submissions 10 it will be relevant to refer to sections 40 42 43 and 44 of the said act 40 dissolution by agreement a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners 41 42 dissolution on the happening of certain contingencies subject to contract between the partners a firm is dissolved a if constituted for a fixed term by the expiry of the term b if constituted to carry out one or more adventures or undertakings by the completion thereof 2 1977 4 scc 467 3 2004 3 scc 172 9 c by the death of a partner and d by the adjudication of a partner as an insolvent 43 dissolution by notice of partnership at will where the partnership is at will the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm 2 the firm is dissolved as from the date mentioned in the notice as the date of dissolution or if no date is so mentioned as from the date of the communication of the notice 44 dissolution by the court at the suit of a partner the court may dissolve a firm on any of following grounds namely a that a partner has become of unsound mind in which case the suit may be brought as well by the next friend of the partner who has become of unsound mind as by any other partner b that a partner other than the partner suing has become in any way permanently incapable of performing his duties as partner c that a partner other than the partner suing is guilty of conduct which is likely to affect prejudicially the carrying on of the business regard being had to the nature of the business d that a partner other than the partner suing willfully or persistently 10 commits breach of agreements relating to the management of the affairs of the firm or the conduct of its business or otherwise so conducts himself in matters relating to the business that it is not reasonably practicable for the other partners to carry on the business in partnership with him e that a partner other than the partner suing has in any way transferred the whole of his interest in the firm to a third party or has allowed his share to be charged under the provisions of rule 49 of order xxi of the first schedule to the code of civil procedure 1908 5 of 1908 or has allowed it to be sold in the recovery of arrears of land revenue or of any dues recoverable as arrears of land revenue due by the partner f that the business of the firm cannot be carried on save at a loss or g on any other ground which renders it just and equitable that the firm should be dissolved 11 it will also be relevant to refer to clauses 4 6 and 7 of the partnership deed dated 6th december 1943 4 that upon the death of any partner the partnership shall not be automatically dissolved but the surviving partners may admit the legal representative of the 11 deceased unto the partnership by mutual consent 5 6 in case of death of any partner or retirement during the continuance of the partnership shall be deemed to exist only upto to the end of the accounting period of the year during which the death or retirement occurs and the estate of the deceased partner or the retiring partner shall be entitled to receive and be responsible for all profits and losses of the partnership up to the end of the accounting period as the case may be 7 this indenture further witnesseth that the said parties hereto hereby mutually covenant and agree that they will carry on the said business in partnership until dissolution under and in accordance with the provisions and stipulation hereinabefore stated or contained in the said indenture dated the 1st day of september 1938 so far as the same respectively are now subsisting and capable of taking and are applicable to the altered circumstances hereinbefore appearing and any dispute in relation to the said partnership shall be decided by arbitration according to the provisions of the indian arbitration and for that purpose each of the disputing parties may nominate one arbitrator provided however that none of the parties hereto shall at any time be entitled to apply to any court of law for the dissolution of the partnership or for appointment of a receiver over the partnership or any portion of its assets 12 12 from the perusal of the plaint it could be gathered that the case of the plaintiffs is that in spite of demise of the three original partners of the partnership firm through whom the plaintiffs were claiming the defendants have been carrying on the business of the partnership firm it is their case that the accounts of the partnership firm have not been finalized and that the share of the profits of the partnership firm has not been paid to them it is also the case of the plaintiffs that the defendants are seeking to represent the partnership firm to the exclusion of the plaintiffs and that the defendants are siphoning off funds of the partnership firm it is their case that they along with the defendants are entitled to the assets and properties of the partnership firm as legal heirs of the original partners of the partnership firm reconstituted under the partnership deed dated 6th december 1943 13 no doubt that it is rightly contended on behalf of the plaintiffs that only on the basis of the averments made in the plaint it could be ascertained as to whether a cause of action is 13 made out or not it is equally true that for finding out the same the entire pleadings in the plaint will have to be read and that too at their face value at this stage the defence taken by the defendants cannot be looked into 14 we may gainfully refer to the observations of this court in the case of t arivandandam v t v satyapal and another supra 5 we have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to from the statement of the facts found in the judgment of the high court it is perfectly plain that the suit now pending before the first munsif s court bangalore is a flagrant misuse of the mercies of the law in receiving plaints the learned munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue he should exercise his power under order 7 rule 11 cpc taking care to see that the ground mentioned therein is fulfilled and if clever drafting has created the illusion of a cause of action nip it in the bud at the first hearing by examining the party searchingly under order 10 cpc an activist judge is the 14 answer to irresponsible law suits the trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage the penal code is also resourceful enough to meet such men cr xi and must be triggered against them in this case the learned judge to his cost realised what george bernard shaw remarked on the assassination of mahatma gandhi it is dangerous to be too good emphasis supplied 15 it could thus be seen that this court has held that reading of the averments made in the plaint should not only be formal but also meaningful it has been held that if clever drafting has created the illusion of a cause of action and a meaningful reading thereof would show that the pleadings are manifestly vexatious and meritless in the sense of not disclosing a clear right to sue then the court should exercise its power under order vii rule 11 of cpc it has been held that such a suit has to be nipped in the bud at the first hearing itself 15 16 it will also be apposite to refer to the following observations of this court in the case of pearlite liners p ltd supra 10 the question arises as to whether in the background of the facts already stated such reliefs can be granted to the plaintiff unless there is a term to the contrary in the contract of service a transfer order is a normal incidence of service further it is to be considered that if the plaintiff does not comply with the transfer order it may ultimately lead to termination of service therefore a declaration that the transfer order is illegal and void in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant company such a relief cannot be granted next relief sought in the plaint is for a declaration that she continues to be in service of the defendant company such a declaration again amounts to enforcing a contract of personal service which is barred under the law the third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her if the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her the management cannot be restrained from exercising its discretion in this behalf ultimately this relief if granted would indirectly mean that the court is 16 assisting the plaintiff in continuing with her employment with the defendant company which is nothing but enforcing a contract of personal service thus none of the reliefs sought in the plaint can be granted to the plaintiff under the law the question then arises as to whether such a suit should be allowed to continue and go for trial the answer in our view is clear that is such a suit should be thrown out at the threshold why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for be tried at all accordingly we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf the high court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits the judgment of the high court is hereby set aside and the judgments of the courts below that is the trial court and the lower appellate court are restored the plaint in the suit stands rejected emphasis supplied 17 it could thus be seen that the court has to find out as to whether in the background of the facts the relief as claimed in the plaint can be granted to the plaintiff it has been held that if the court finds that none of the reliefs sought in the plaint 17 can be granted to the plaintiff under the law the question then arises is as to whether such a suit is to be allowed to continue and go for trial this court answered the said question by holding that such a suit should be thrown out at the threshold this court therefore upheld the order passed by the trial court of rejecting the suit and that of the appellate court thereby affirming the decision of the trial court this court set aside the order passed by the high court wherein the high court had set aside the concurrent orders of the trial court and the appellate court and had restored and remanded the suit for trial to the trial court 18 therefore the question that will have to be considered is as to whether the reliefs as claimed in the plaint by the plaintiffs could be granted or not we do not propose to do that exercise inasmuch as the division bench of the high court has elaborately considered the issue as to whether applying the provisions of the said act read with the aforesaid clauses in the partnership deed the reliefs as claimed in the plaint could be 18 granted or not the relevant discussion by the high court reads thus 31 let us take the prayers one by one the first prayer is for a declaration that the plaintiffs and the defendants are entitled to the assets and properties of the said firm as the legal heirs of the original partners it is trite law that the partners of a firm are entitled only to the profits of the firm and upon dissolution of the firm they are entitled to the surplus of the sale proceeds of the assets and properties of the firm if any after meeting the liabilities of the firm in the share agreed upon in the partnership deed the partners do not have any right title or interest in respect of the assets and properties of a firm so long as the firm is carrying on business hence the plaintiffs as legal heirs of some of the original partners cannot maintain any claim in respect of the assets and properties of the said firm their prayer for declaration of co ownership of the assets and properties of the said firm is not maintainable in law the second prayer in the plaint is for a declaration that the plaintiffs along with the defendants are entitled to represent the firm in all proceedings before the concerned authorities of the state of bihar for the acquisition of its bhagalpur land the framing of this prayer shows that this is a consequential relief claimed by the plaintiffs which can only be granted if the first prayer is allowed since in our opinion prayer a of the plaint cannot be granted in law prayer 19 b also cannot be granted prayer c is also a consequential relief only if the plaintiffs were entitled to claim prayer a they could claim prayer c we are not on whether or not the plaintiffs will succeed in obtaining prayer a according to us the plaintiffs are not even entitled to pray for the first relief indicated above as the same cannot be granted under the law of the land consequently prayer c also cannot be granted prayers d and e both pertain to dissolution of the firm prayer e is for a decree of dissolution and for winding up of the affairs of the firm prayer d is for full accounts of the firm for the purpose of its dissolution emphasis is ours however it is settled law that only the partners of a firm can seek dissolution of the firm admittedly the plaintiffs are not partners of the said firm sec 39 of the partnership act provides that the dissolution of partnership between all the partners of a firm is called the dissolution of the firm sec 40 provides that a firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners sec 41 provides for compulsory dissolution of a firm sec 42 stipulates that happening of certain contingencies will cause dissolution of a firm but this is subject to contract between the partners a partnership at will may be dissolved by any partner giving notice in writing to the other partners of his intention to dissolve the firm as provided in sec 43 of the act sec 44 empowers the court to dissolve a firm on the grounds mentioned therein on a suit of a partner 20 thus it is clear that it is only a partner of a firm who can seek dissolution of the firm the dissolution of a firm cannot be ordered by the court at the instance of a non partner hence the plaintiffs are not entitled to claim dissolution of the said firm consequently they are also not entitled to pray for accounts for the purpose of dissolution of the firm 32 what should the court do if it finds that even taking the averments in the plaint at face value not one of the reliefs claimed in the plaint can be granted should the court send the parties to trial we think not it will be an exercise in futility it will be a waste of time money and energy for both the plaintiffs and the defendants as well as unnecessary consumption of court s time it will not be fair to compel the defendants to go through the ordinarily long drawn process of trial of a suit at huge expense not to speak of the anxiety and un peace of mind caused by a litigation hanging over one s head like the damocles s sword no purpose will be served by allowing the suit to proceed to trial since the prayers as framed cannot be allowed on the basis of the pleadings in the plaint the plaintiffs have not prayed for leave to amend the plaint when the court is of the view just by reading the plaint alone and assuming the averments made in the plaint to be correct that none of the reliefs claimed can be granted in law since the plaintiffs are not entitled to claim such reliefs the court should reject the plaint as disclosing no cause of action the reliefs claimed in a plaint flow from and are the culmination of the cause of action pleaded in 21 the plaint the cause of action pleaded and the prayers made in a plaint are inextricably intertwined in the present case the cause of action pleaded and the reliefs claimed are not recognized by the law of the land such a suit should not be kept alive to go to trial 19 we are in complete agreement with the findings of the high court insofar as the reliance placed by shri jain on the judgment of this court in the case of dahiben supra to which one of us l nageswara rao j was a member is concerned in our view the said judgment rather than supporting the case of the plaintiffs would support the case of the defendants paragraphs 23 3 23 4 23 5 and 23 6 in the case of dahiben supra read thus 23 3 the underlying object of order 7 rule 11 a is that if in a suit no cause of action is disclosed or the suit is barred by limitation under rule 11 d the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit in such a case it would be necessary to put an end to the sham litigation so that further judicial time is not wasted 22 23 4 in azhar hussain v rajiv gandhi azhar hussain v rajiv gandhi 1986 supp scc 315 followed in manvendrasinhji ranjitsinhji jadeja v vijaykunverba 1998 scc onlineguj281 1998 2 glh 823 this court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to waste judicial time of the court in the following words scc p 324 para 12 12 the whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent the sword of damocles need not be kept hanging over his head unnecessarily without point or purpose even in an ordinary civil litigation the court readily exercises the power to reject a plaint if it does not disclose any cause of action 23 5 the power conferred on the court to terminate a civil action is however a drastic one and the conditions enumerated in order 7 rule 11 are required to be strictly adhered to 23 23 6 under order 7 rule 11 a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint liverpool london s p i assn ltd v m v sea success i 2004 9 scc 512 read in conjunction with the documents relied upon or whether the suit is barred by any law 20 it could thus be seen that this court has held that the power conferred on the court to terminate a civil action is a drastic one and the conditions enumerated under order vii rule 11 of cpc are required to be strictly adhered to however under order vii rule 11 of cpc the duty is cast upon the court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint read in conjunction with the documents relied upon or whether the suit is barred by any law this court has held that the underlying object of order vii rule 11 of cpc is that when a plaint does not disclose a cause of action the court would not permit the plaintiff to unnecessarily protract the proceedings it has been held that in such a case it will be necessary to put an end to the sham litigation so that further judicial time is not wasted 24 21 we are in agreement with the division bench of the calcutta high court which upon an elaborate scrutiny of the averments made in the plaint the reliefs claimed therein the provisions of the said act and the clauses of the partnership deed came to the conclusion that the reliefs as sought in the plaint cannot be granted 22 the appeals are found to be without merit and as such are dismissed pending application s if any shall stand disposed of no costs j l nageswara rao j b r gavai new delhi september 21 2021 25 359 2021_t p c no 000062 2021 versus priyanka arya the court of principal judge priyanka arya the court of principal judge family court 2021 01 10 1 in the supreme court of india civil original jurisdiction transfer petition civil no 62 2021 priyanka arya petitioner versus ashutosh arya respondent o r d e r this petition has been filed under section 25 of the code of civil procedure 1908 seeking transfer of case being hma no 109 of 2020 titled as ashutosh arya vs priyanka arya pending before the court of principal judge family court south east saket delhi to the court of principal judge family court nainital uttarakhand after hearing learned counsel for both the parties and considering the fact that the parents of the petitioner as well as of the respondent are from haldwani and husband is posted at delhi while the wife is doing her ph d at solan himachal pradesh this court deems it appropriate to transfer the case being hma no 109 of 2020 pending before the court of principal judge family court south east saket delhi to the court of principal judge family court nainital uttarakhand ordered accordingly the principal judge family court south east saket at delhi is directed to transmit the entire record to the transferee court immediately 2 the transferee court shall decide the case so transferred as expeditiously as possible the registry is directed to send a copy of this order to both the courts immediately for compliance the transfer petition is therefore allowed j j k maheshwari new delhi date 01 10 2021 1 in the supreme court of india civil original jurisdiction transfer petition civil no 62 2021 priyanka arya petitioner versus ashutosh arya respondent o r d e r this petition has been filed under section 25 of the code of civil procedure 1908 seeking transfer of case being hma no 109 of 2020 titled as ashutosh arya vs priyanka arya pending before the court of principal judge family court south east saket delhi to the court of principal judge family court nainital uttarakhand after hearing learned counsel for both the parties and considering the fact that the parents of the petitioner as well as of the respondent are from haldwani and husband is posted at delhi while the wife is doing her ph d at solan himachal pradesh this court deems it appropriate to transfer the case being hma no 109 of 2020 pending before the court of principal judge family court south east saket delhi to the court of principal judge family court nainital uttarakhand ordered accordingly the principal judge family court south east saket at delhi is directed to transmit the entire record to the transferee court immediately 2 the transferee court shall decide the case so transferred as expeditiously as possible the registry is directed to send a copy of this order to both the courts immediately for compliance the transfer petition is therefore allowed j j k maheshwari new delhi date 01 10 2021 403 2019_c a no 005970 005970 2021 maharashtra state pune and others j u d g m e n dhananjaya y chandrachud libra buildtech and others 2 2018 11 22 of this court in committee gfil vs libra buildtech private limited and others 2 11 opposing the submissions of the appellant mr rahul chitnis chief standing anthulay v rs corporation v union association v union ca 5970 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 5970 of 2021 arising out of slp c no 699 of 2019 mr rajeev nohwar appellant versus chief controlling revenue authority respondent s maharashtra state pune and others j u d g m e n t dr dhananjaya y chandrachud j 1 leave granted 2 a citizen s claim for the refund of stamp duty has found a winding path to this court the appellant booked a residential apartment there arose a dispute with the builder it led to a consumer complaint the litigation consumed time the appellant was permitted to opt for a refund of the price the claim for refund of stamp duty has been rejected by the revenue arm of the state on the ground that more than six months have elapsed the bombay high court agreeing with the decision found the claim to be stale a simple claim for refund leads us to ca 5970 2021 2 the complexities of a revenue sourcing law 3 this appeal arises from a judgment dated 22 november 2018 of a single judge of the high court of judicature at bombay the deputy inspector general of registration and deputy controller of stamps pune rejected an application for refund of stamp duty filed by the appellant the order of the authority was challenged in the exercise of the jurisdiction of the high court under article 226 of the constitution the petition has been dismissed 4 on 24 april 2014 the appellant booked a residential flat being unit no 2001 admeasuring 1660 sq ft in tower no 24 of a construction project called lodha belmondo in pune for a consideration of rs 1 68 88 095 the appellant initially paid an amount of rs 33 91 795 by july 2014 representing 19 9 of the agreed sale consideration following which a confirmatory email was issued this was followed by a letter of allotment dated 15 july 2014 on 14 august 2014 the appellant paid an amount of rs 1 58 28 221 out of the agreed consideration in order to facilitate the execution of a conveyance the appellant purchased an e sbtr stamp paper through a government challan bearing mtr grn no mh0023603832014155 for a total amount of rs 8 44 500 from the idbi bank aundh pune for the execution of the agreement to sell 5 disputes arose between the appellant and the developer which led to the appellant instituting a consumer complaint before the national consumer disputes redressal commission1 during the pendency of the complaint an 1 ncdrc ca 5970 2021 3 interim order dated 25 september 2014 restrained the developer from creating third party interests in the flat eventually by an order dated 6 may 2016 the complaint was allowed the appellant was given the option to either execute the agreement with the developer in which event the developer would pay compensation in the amount of rs 10 lakhs or in the alternative if the appellant was not willing to execute an agreement the developer was directed to refund the entire consideration together with interest at the rate of 12 per annum from the date of receipt of each installment until the date of refund along with compensation of rs 10 00 000 the appellant exercised the option of seeking a refund of consideration together with interest 6 the developer issued a cheque on 11 july 2016 for the refund of the consideration in terms of the order of the ncdrc the appellant thereupon applied on 16 july 2016 for refund of the stamp duty of rs 8 44 500 to the collector of stamps by a communication dated 5 august 2016 the collector of stamps forwarded the file to the deputy inspector general of registration with a recommendation that the refund should be denied on the ground that the appellant had not applied for refund within six months by an order dated 27 september 2016 the deputy inspector general of registration rejected the application for refund of stamp duty on the ground that the application for refund was not made within six months as mandated by section 48 3 of the maharashtra stamp act 1958 the appellant filed an appeal before the chief controlling revenue authority under section 53 1a of the maharashtra stamp act 1958 the appeal was dismissed on 2 april 2018 on the same ground the ca 5970 2021 4 appellant moved the high court of judicature at bombay in a writ petition under article 226 of the constitution challenging the orders dated 27 september 2016 and 2 april 2018 and for seeking an order directing the refund of the stamp duty paid 7 the high court by its judgment dated 22 november 2018 dismissed the petition affirming the view of the revenue authorities that the application for refund was barred by limitation not having been preferred within a period of six months from the date of the purchase of the e stamp the high court rejected the argument that the six month limitation period under section 48 3 would not be applicable since the appellant s case falls under section 52a of the act it was observed that sections 47 48 52 and 52a of the act will have to be interpreted harmoniously and an application under section 52a will also have to be made within six months from the date of purchase of the stamps the matter has accordingly travelled to this court notice was issued on 18 january 2019 8 mr varun singh counsel appearing on behalf of the appellant submits that in order to appreciate the circumstances in which the application for refund was filed it is necessary to bear in mind the following events i the e stamp paper was purchased on 16 august 2014 ii following the dispute with the developer the appellant moved the ncdrc which initially granted an interim stay on the creation of third party rights on 25 september 2014 and ca 5970 2021 5 eventually allowed the complaint on 6 may 2016 and iii the application for refund was moved on 16 july 2016 9 in this backdrop counsel for the appellant submitted that for the following five reasons the application for refund was instituted within a reasonable period and cannot be held to be barred either on laches or limitation i the dispute in relation to the agreement with the developer was pending adjudication before the ncdrc ii the appellant had paid the stamp duty and purchased the e stamp paper bona fide in order to facilitate the completion of the transaction pertaining to the residential flat iii in order to demonstrate the readiness and willingness of the appellant before the ncdrc it was necessary for the appellant to continue to retain the e stamp paper pending the disposal of the proceedings iv the e stamp paper as a matter of fact would have been used if the adjudication by the ncdrc had resulted in a resolution of the dispute by removing some of the offending provisions insisted by the developer and v following the order of the ncdrc the appellant exercised the ca 5970 2021 6 option to seek a refund in terms of a judicial order of the competent forum 10 in this backdrop counsel has relied on the provisions of sections 47 48 and 52a of the maharashtra stamp act 1958 it has been submitted that the provisions of section 48 3 which prescribe a period of six months from the date of purchase of stamp for filing an application for refund would have no application where the case is not covered by the provisions of section 47 in such a situation it was urged that section 52a would enure to the benefit of the appellant in this context counsel for the appellant relied on a judgment of a two judge bench of this court in committee gfil vs libra buildtech private limited and others 2 11 opposing the submissions of the appellant mr rahul chitnis chief standing counsel for the state of maharashtra has urged that i the application filed by the appellant was specifically under the provisions of section 47 of the maharashtra stamp act 1958 ii once the appellant has conceded that the application was filed with reference to section 47 the period of limitation prescribed in section 48 would squarely stand attracted iii as a matter of fact the application for refund of stamp duty would be relatable to the provisions of section 47 a of the act and 2 2015 16 scc 31 ca 5970 2021 7 iv in these circumstances the appellate authority was justified in coming to the conclusion that the application for refund was barred by limitation the rival submissions fall for our analysis 12 chapter 5 of the maharashtra stamp act 1958 is titled allowances for stamps in certain cases section 47 which deals with allowance for spoiled stamps provides as follows 47 allowance for spoiled stamps subject to such rules as may be made by the state government as to the evidence to be required or the inquiry to be made the collector may on application made within the period prescribed in section 48 and if he is satisfied as to the facts make allowance for impressed stamps spoiled in the cases hereinafter mentioned namely a the stamp on any paper inadvertently and undesignedly spoiled obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person b the stamp on any document which is written out wholly or in part but which is not signed or executed by any party thereto c the stamp used for an instrument executed by any party thereto which 1 has been afterwards found by the party to be absolutely void in law from the beginning 1a has been afterwards found by the court to be absolutely void from the beginning under section 31 of the specific relief act 1963 2 has been afterwards found unfit by reason of any error or ca 5970 2021 8 mistake therein for the purpose originally intended 3 by reason of the death of any person by whom it is necessary that it should be executed without having executed the same or of the refusal of any such person to execute the same cannot be completed so as to effect the intended transaction in the form proposed 4 for want of the execution thereof by some material party and his inability or refusal to sign the same is in fact incomplete and insufficient for the purpose for which it was intended 5 by reason of the refusal of any person to act under the same or to advance any money intended to be thereby secured or by the refusal or non acceptance of any office thereby granted totally fails of the intended purpose 6 becomes useless in consequence of the transaction intended to be thereby effected by some other instrument between the same parties and bearing a stamp of not less value 7 is deficient in value and the transaction intended to be thereby effected had been effected by some other instrument between the same parties and bearing a stamp of not less value 8 is inadvertently and undesignedly spoiled and in lieu whereof another instrument made between the same parties and for the same purpose is executed and duly stamped provided that in the case of an executed instrument except that falling under sub clause la no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled or has been already given up to the court to be cancelled explanation the certificate of the collector under section 32 that the full duty with which an instrument is chargeable has been paid is an impressed stamp within the meaning of this section emphasis supplied ca 5970 2021 9 13 section 47 is subject to the rules which are made by the state government in regard to the evidence to be required or enquiry to be made the provision stipulates that the collector may make allowance on an application seeking an allowance for impressed stamps spoiled in the cases which are set out in clauses a to c the opening words of section 47 also indicate that the application under section 47 has to be made within the period which is prescribed by section 48 the prefatory words of section 47 advert to impressed stamps spoiled in the cases which are contained in clauses a to c clause a deals with a situation where the stamp on any paper is inadvertently or undesignedly spoiled obliterated or rendered unfit for the purpose intended either by an error in writing or by any other means before the instrument written on it is executed by any person the object of clause a is to ensure that an allowance is made for impressed stamps which are spoiled inadvertently or unintentionally or where the stamp paper is rendered unfit for the purpose for which it was intended that is why the expressions which have been used in clause a are spoiled obliterated or rendered unfit for the purpose 14 section 47 covers three classes of cases within it i spoiled ii obliterated and iii unfit for the purpose by an error in writing or any other means it is contended by the state that the case of the appellant would fall within the purview of the third category since it was rendered unfit for the purpose i e the purpose of purchase of the property this submission thus places reliance on the expression purpose used in the provision the submission does not accord with a plain reading of the provision the expression any other means must be read ca 5970 2021 10 in the context of the words which immediately precede it namely error in writing the expression by any other means would indicate that the legislature intended to refer to defacement of a stamp paper in any manner analogous to an error in writing the instrument on the stamp paper any other means refers to any other modality by which the stamp paper is rendered unfit for the purpose for which it was purchased moreover the prefatory words in section 47 state that the collector must be satisfied that the stamp is spoiled clauses a to c lay down the cases that are covered within the ambit of the expression spoiled stamps the emphasis of section 47 is not on the purpose but on unfit stamps therefore a case where the stamp has not been utilized at all because it is not needed subsequent to the purchase will not fall within the purview of section 47 only those cases where the stamp is unfit for the purpose by an error in writing or any other means would be covered by the provision it is not the case of the appellant that the stamp paper has been spoiled or obliterated or rendered unfit for the purpose for which it was required in the present case it is common ground that the stamp paper is not spoiled but the purpose for which the stamp was purchased has become redundant in view of the judgment of the ncdrc therefore there would be no occasion to apply the provisions of clause a of section 47 15 clause c of section 47 begins with the expression stamp used for an instrument executed by any party thereto and is followed by eight sub clauses in other words clause c of section 47 applies only where a stamp paper has been used for an instrument which has been executed by one of the parties to ca 5970 2021 11 the instrument that is why for instance sub clause 2 refers to the instrument being subsequently found unfit either by reason of an error or mistake for the purpose for which it was originally intended sub clause 4 adverts to a situation where the instrument has not been executed by a material party and by his inability or refusal to sign it renders the instrument incomplete and insufficient for the purpose for which it was intended clause c of section 47 has no application to the facts of the present case since it is common ground that the stamp was not used for an instrument already executed by any party thereto 16 now it is in this backdrop that it becomes necessary to advert to section 48 of the act section 48 provides as follows 48 application for relief under section 47 when to be made the application for relief under section 47 shall be made within the following period that is to say 1 in the cases mentioned in clause c 5 within six months of the date of the instruments provided that where an agreement to sell immovable property on which stamp duty is paid under article 25 of the schedule i is presented for registration under the provisions of the registration act 1908 and if the seller refuses to deliver possession of the immovable property which is the subject matter of such agreement the application may be made within two years of the date of the instrument or where such agreement is cancelled by a registered cancellation deed on the grounds of dispute regarding the premises concerned inadequate finance financial dispute in terms of agreed consideration or afterwards found to be illegal construction or suppression of any other material fact the application may be made within two years from the date of such registered cancellation deed 2 in the case when for unavoidable circumstances any instrument for which another instrument has been substituted cannot be given up to be cancelled the application may be ca 5970 2021 12 made within six months after the date of execution of the substituted instrument 3 in any other case within six months from the date of purchase of stamp 17 section 48 begins with the statement that the application for relief under section 47 shall be made within the periods which are indicated in clauses 1 2 and 3 in other words the periods of limitation which are prescribed in clauses 1 2 and 3 are in respect of those cases which are governed by section 47 clause 1 stipulates that for cases governed by clause c 5 the period within which the application has to be filed will be six months of the date of the instrument clause 2 specifies that in case where for unavoidable circumstances any instrument for which another instrument has been substituted cannot be given up to be cancelled in such an event the application may be made within six months after the date of execution of the substituting instrument clause 3 which is a residuary provision provides for a limitation of six months from the date of the purchase of stamp 18 the revenue authorities rejected the application filed by the appellant on the ground that the application was not filed within six months from the date of the purchase of the stamp paper treating the case to fall within the residuary provision in section 48 of the act this view has been accepted by the single judge of the bombay high court what this view misses is that section 48 in its entirety applies only to those cases where the application for relief is governed ca 5970 2021 13 by section 47 if the application for refund is not with reference to the provisions of section 47 the period of limitation in section 48 clearly has no application since the application of the appellant does not fall within the purview of any of the clauses in section 47 the 6 month limitation period prescribed in section 48 would not be applicable to the application for allowance filed by the appellant 19 having observed that the application of the appellant for allowance is not covered by the section 47 it is imperative to determine if it falls within the purview of any other provisions of the act section 49 provides that allowance can be made without any limit of time for stamp papers that are used as printed forms of instruments by any banker or company if the forms are not required by the banks or the companies thus the application of the appellant is not covered by section 49 section 50 states that allowance for misused stamps can be made the provision brings within the purview of the term misused stamps the stamps of greater value than required or stamps of description other than that prescribed by any rules or stamps that are useless since the instrument is written in contravention of the provisions or where a stamp has been used when the instrument is not charged with stamp duty section 50 only covers those cases where inadvertent mistakes are made in the stamp paper therefore the case of the appellant is not covered by section 50 since there is no mistake in the e stamp be it with regard to the value or description section 51 lays down the procedure for seeking allowance for cases that fall under section 47 49 and 50 and is thus of no application to the appellant s claim 20 now it is important to refer to section 52 of the act which provides as follows ca 5970 2021 14 52 allowance for stamps not required for use when any person is possessed of a stamp or stamps which have not been spoiled or rendered unfit or useless for the purpose intended but for which he has no immediate use the collector shall repay to such person the value of such stamp or stamps in money deducting thereform such amount as may be prescribed by rules made in this behalf by the state government upon such person delivering up the same to be cancelled and proving to the collector s satisfaction a that such stamp or stamps were purchased by such person with a bona fide intention to use them and b that he has paid the full price thereof and c that they were so purchased within the period of 1 six months next preceding the date on which they were so delivered provided that where the person is a licensed vendor of stamp the collector may if he thinks fit make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid emphasis supplied section 52 deals with provision of allowance in case of stamps that are not required for use there are two kinds of stamps that are not required for use the first is where the stamp is spoiled as covered by section 47 of the act the second is where the stamp is not spoiled but the stamp is not needed since the purchaser has no use of it section 52 specifically excludes the first of category since it is already covered by section 47 the provision only applies to the class in the second category thus section 52 covers stamps that are not spoiled but which are of no use to the applicant by the occurrence of any subsequent event that renders the purpose of purchase of stamp void or nugatory for the application of section 52a the applicant must have purchased the stamp on the payment of full price with a bona fide intention to use it however within six months from the purchase of the stamp the purpose of the purchase has not ca 5970 2021 15 been fulfilled such a situation can arise in multiple circumstances for example a person may have obtained a stamp paper for purchasing a building however before the agreement of sale could be executed the building turns to shambles after an earthquake hits the area in such a case the stamp paper has no use this may also cover a case where the seller has taken back his consent to sell the property after the purchase of the stamp paper in such cases the stamp purchased will not have any use since the purpose for which it was purchased could not materialize 21 it could be argued that the use of the words for which he has no immediate use in section 52 would only covers cases where the purpose for the purchase of the stamp is still valid but the execution of the purpose if delayed and not immediate such an interpretation however is erroneous in view of the holistic reading of the provision the use of the phrase immediate must be read in the context of the limitation period prescribed by the provision since a six month limitation period has been imposed in section 52 for the cases that fall within its purview the use of the phrase no immediate use should be interpreted to mean either the permanent abandonment of the purpose or a delay of more than six months from the purchase of the stamp in the execution of the purpose 22 however section 52 would only apply to those cases where the applicant had knowledge that the stamp purchased was not be required for use within six months from the date of purchase the provision cannot be arbitrarily applied to cases where the purchaser of the stamp had no knowledge that the stamp ca 5970 2021 16 would not be required for use within six months from the purchase of the stamp in the instant case the appellant had no knowledge of the fact that the stamp was not needed within six months from the purchase of it he was in a bona fide contest over his rights with the builder therefore the case of the appellant would not fall under section 52 of the act as well 23 it has been contended by the counsel for the appellant that the case of the appellant falls within the purview of section 52a of the act now it becomes necessary to advert to the provisions of section 52a which provides as follows 52a allowance for duty 1 notwithstanding anything contained in sections 47 50 51 and 52 when payment of duty is made by stamps or in cash as provided for under sub section 3 of section 10 or section 10a or section 108 and when the amount of duty paid exceeds rupees one lakh the concerned collector shall not make allowance for the stamps or the cash amount paid under the challans which are spoilt or misused or not required for use but shall after making necessary enquiries forward the application with his remarks thereon to a the additional controller of stamps for the cases handled by the collectors working in the mumbai city district and mumbai suburban district and b the concerned deputy inspector general of registration and deputy controller of stamps of the division for the cases handled by the collectors other than those mentioned in clause a 2 the additional controller of stamps or the concerned deputy inspector general of registration and deputy controller of stamps of the division as the case may be on receiving such application consider the same and decide whether such allowance shall be given or not and accordingly shall grant the same if the amount of allowance does not exceed rupees ten lakh and if it exceeds rupees ten lakh shall submit such application with his remarks thereon to the chief controlling revenue authority for decision ca 5970 2021 17 3 the chief controlling revenue authority on receiving such application shall decide on merit whether such allowance shall be given or not and pass such order thereon as he thinks just and proper which shall be final and shall not be questioned in any court or before any authority 24 section 52a is prefaced with a non obstante clause which operates notwithstanding anything contained in sections 47 50 51 and 52 section 52a stipulates that when the amount of stamp duty paid exceeds rs 5 lakhs the concerned collector shall not make an allowance for the stamps or the cash amount paid under the challans but shall after making necessary enquiries forward the application with his remarks to the additional collector of stamps for cases handled by the collectors working in the mumbai city district and mumbai sub urban districts and the concerned deputy inspector general of registration and deputy controlling of stamps for cases in other regions 25 in view of section 52a 2 of the act the additional collector of stamps or the dig as the case may be on assessing the application has to decide whether allowance should be given or not and shall grant it if the amount of allowance does not exceed rs 20 lakhs if the amount exceeds rs 20 lakhs the application has to be submitted to the chief controlling revenue authority the chief controlling revenue authority on receiving the application is required to decide on merits whether or not the allowance should be given the provisions of section 52a were substituted with effect from 1 may 2006 by maharashtra act 12 of 2006 by an amendment the amount of rs 5 lakhs which has been specified in sub section 1 was enhanced from rs 1 lakh by maharashtra act 20 ca 5970 2021 18 of 2015 with effect from 24 april 2015 likewise in sub section 2 the amount of rs 20 lakhs stands enhanced from the earlier amount of rs 10 lakhs by the same amending provision 26 the provisions of section 52a as noticed above have overriding force and effect inter alia on the provisions of sections 47 50 51 and 52 it is pertinent to note that the non obstante clause does not apply to sections 48 and 49 of the act while section 48 is a limitation clause applicable to cases that are covered by section 47 section 49 applies to a corporation where no limitation period has been prescribed section 52a can be applied to the appellant s case only if the provision is interpreted to override the limitation period laid down in the preceding provisions and if it is regarded as a residual substantive provision that would cover all cases that are not covered by any of the provisions we will now consider the validity of such an interpretation 27 if section 52a was enacted with the intent to override the limitation prescribed by sections 50 51 and 52 then section 48 ought to have also been included specifically since section 48 is the limitation provision applicable to section 47 section 48 is not incorporated in the non obstante provision of section 52 a this is hence intrinsic material to indicate that the purpose of the non obstante clause in section 52a was to override the jurisdiction of the adjudicating authority i e the collector under sections 47 50 51 and 52 to decide the claims for allowances section 52a specifically divests the power of the collector to decide the claims of allowance falling within those provisions and vests the power to other authorities if the payment of stamp duty exceeds rupees five ca 5970 2021 19 lakhs in those cases though the application is to be made to the collector he will have no adjudicatory capacity the collector must forward the application to the concerned authority as mentioned in section 52a along with remarks and such authority would have the power to decide the claim the interpretation that section 52a only overrides the authority of the collector in adjudicating the case is evident since the provision does not override section 49 where the adjudicating officer is the chief controlling revenue authority in such a case section 52a cannot be considered as a residual clause by applying it to classes of cases that do not fall within the purview of any other provisions a contrary interpretation would create an artificial class based on economic capacity as cases where the stamp duty paid exceeds rupees five lakhs will alone be adjudicated without application of any limitation period as a residual case while cases falling within the same class but where stamp duty paid is less than rupees five lakhs cannot take recourse to the provision it is an established principle of interpretation that an interpretation that furthers the constitutionality of a provision will have to be undertaken an interpretation which leads to an invidious discrimination must be eschewed thus the intendment of section 52a was neither to cover the applications that are not brought under any of the preceding substantive clauses nor to override the limitation clauses 28 evidently and for the reasons that we have indicated above the application filed by the appellant did not fall within the ambit of sections 47 52 and 52a it is true that the application for refund was titled with reference to the provisions of section 47 but it is well settled that a reference of a wrong statutory provision ca 5970 2021 20 cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision 29 in the present case the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer there was a dispute with the developer which led to the institution of the proceedings before the ncdrc there was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings the ncdrc allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or in the alternative to seek a refund with interest the appellant having exercised the latter option applied within two months from the order of the ncdrc for the grant of refund the conduct of the appellant therefore cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty such an application must be filed within a reasonable period 30 in committee gfil supra a two judge bench of this court was dealing with the issue of limitation prescribed in the indian stamp act 1899 in this case an auction sale of immovable properties was held by a committee constituted by this court successful bidders deposited with the committee the entire sale consideration along with the stamp duty however the transaction failed due to reasons beyond the control of the parties the court cancelled the transaction ca 5970 2021 21 and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the state government for refund of the stamp duty the applications of the auction purchasers seeking refund of stamp duty was rejected on the ground that the applications were time barred an application against the rejection of the refund applications was filed before this court this court allowed the application on three grounds i the transaction which was court monitored could not be fulfilled for reasons beyond the control of the auction purchasers no act of the court should prejudice a person ii in view of the principle of restitution embodied in section 65 of the contract act any advantage received by a person under a void contract or a contract that becomes void is bound to be restored and iii in light of equity and justice the six months limitation period prescribed in section 50 of the indian stamp act 1899 must be read to mean six months from the date of the order of this court 31 we are conscious of the fact that as a general rule of law the right to refund is a statutory creation a refund can be sought in terms envisaged by statute as discussed above the case of the appellant is not specifically barred by any substantive provision it is an established principle that this court while exercising its power under article 142 of constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution 3 therefore if a statute prescribes a limitation period this court must be slow to interfere with the delay under article 142 3 ar anthulay v rs nayak 1988 2 scc 602 union carbide corporation v union of india 1991 4 scc 584 supreme court bar association v union of india 1998 4 scc 409 ca 5970 2021 22 however in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute this court under article 142 will have the power to do complete justice by condoning the delay we are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the ncdrc the application cannot be rejected on the ground of delay a litigant has no control over judicial delays a rejection of the application for refund would violate equity justice and fairness where the applicant is made to suffer the brunt of judicial delay therefore this is a fit case for the exercise of the power under article 142 of the constitution 32 for the above reasons we allow the appeal and set aside the impugned judgment and order of the learned single judge of the bombay high court dated 22 november 2018 as a consequence we direct that the appellant would be entitled to a refund of the stamp duty which was paid at the time of the purchase of the e stamp paper conditional on the appellant returning the e stamp paper to the collector of stamps mumbai the refund shall be processed within a period of one month of the delivery of the e stamp paper to the collector the appellant would be entitled to interest at the rate of 6 per annum from 16 july 2016 until the date of refund in the circumstances of the case there shall be no order as to costs ca 5970 2021 23 33 pending applications if any stand disposed of j dr dhananjaya y chandrachud j b v nagarathna new delhi september 24 2021 ckb ca 5970 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 5970 of 2021 arising out of slp c no 699 of 2019 mr rajeev nohwar appellant versus chief controlling revenue authority respondent s maharashtra state pune and others j u d g m e n t dr dhananjaya y chandrachud j 1 leave granted 2 a citizen s claim for the refund of stamp duty has found a winding path to this court the appellant booked a residential apartment there arose a dispute with the builder it led to a consumer complaint the litigation consumed time the appellant was permitted to opt for a refund of the price the claim for refund of stamp duty has been rejected by the revenue arm of the state on the ground that more than six months have elapsed the bombay high court agreeing with the decision found the claim to be stale a simple claim for refund leads us to ca 5970 2021 2 the complexities of a revenue sourcing law 3 this appeal arises from a judgment dated 22 november 2018 of a single judge of the high court of judicature at bombay the deputy inspector general of registration and deputy controller of stamps pune rejected an application for refund of stamp duty filed by the appellant the order of the authority was challenged in the exercise of the jurisdiction of the high court under article 226 of the constitution the petition has been dismissed 4 on 24 april 2014 the appellant booked a residential flat being unit no 2001 admeasuring 1660 sq ft in tower no 24 of a construction project called lodha belmondo in pune for a consideration of rs 1 68 88 095 the appellant initially paid an amount of rs 33 91 795 by july 2014 representing 19 9 of the agreed sale consideration following which a confirmatory email was issued this was followed by a letter of allotment dated 15 july 2014 on 14 august 2014 the appellant paid an amount of rs 1 58 28 221 out of the agreed consideration in order to facilitate the execution of a conveyance the appellant purchased an e sbtr stamp paper through a government challan bearing mtr grn no mh0023603832014155 for a total amount of rs 8 44 500 from the idbi bank aundh pune for the execution of the agreement to sell 5 disputes arose between the appellant and the developer which led to the appellant instituting a consumer complaint before the national consumer disputes redressal commission1 during the pendency of the complaint an 1 ncdrc ca 5970 2021 3 interim order dated 25 september 2014 restrained the developer from creating third party interests in the flat eventually by an order dated 6 may 2016 the complaint was allowed the appellant was given the option to either execute the agreement with the developer in which event the developer would pay compensation in the amount of rs 10 lakhs or in the alternative if the appellant was not willing to execute an agreement the developer was directed to refund the entire consideration together with interest at the rate of 12 per annum from the date of receipt of each installment until the date of refund along with compensation of rs 10 00 000 the appellant exercised the option of seeking a refund of consideration together with interest 6 the developer issued a cheque on 11 july 2016 for the refund of the consideration in terms of the order of the ncdrc the appellant thereupon applied on 16 july 2016 for refund of the stamp duty of rs 8 44 500 to the collector of stamps by a communication dated 5 august 2016 the collector of stamps forwarded the file to the deputy inspector general of registration with a recommendation that the refund should be denied on the ground that the appellant had not applied for refund within six months by an order dated 27 september 2016 the deputy inspector general of registration rejected the application for refund of stamp duty on the ground that the application for refund was not made within six months as mandated by section 48 3 of the maharashtra stamp act 1958 the appellant filed an appeal before the chief controlling revenue authority under section 53 1a of the maharashtra stamp act 1958 the appeal was dismissed on 2 april 2018 on the same ground the ca 5970 2021 4 appellant moved the high court of judicature at bombay in a writ petition under article 226 of the constitution challenging the orders dated 27 september 2016 and 2 april 2018 and for seeking an order directing the refund of the stamp duty paid 7 the high court by its judgment dated 22 november 2018 dismissed the petition affirming the view of the revenue authorities that the application for refund was barred by limitation not having been preferred within a period of six months from the date of the purchase of the e stamp the high court rejected the argument that the six month limitation period under section 48 3 would not be applicable since the appellant s case falls under section 52a of the act it was observed that sections 47 48 52 and 52a of the act will have to be interpreted harmoniously and an application under section 52a will also have to be made within six months from the date of purchase of the stamps the matter has accordingly travelled to this court notice was issued on 18 january 2019 8 mr varun singh counsel appearing on behalf of the appellant submits that in order to appreciate the circumstances in which the application for refund was filed it is necessary to bear in mind the following events i the e stamp paper was purchased on 16 august 2014 ii following the dispute with the developer the appellant moved the ncdrc which initially granted an interim stay on the creation of third party rights on 25 september 2014 and ca 5970 2021 5 eventually allowed the complaint on 6 may 2016 and iii the application for refund was moved on 16 july 2016 9 in this backdrop counsel for the appellant submitted that for the following five reasons the application for refund was instituted within a reasonable period and cannot be held to be barred either on laches or limitation i the dispute in relation to the agreement with the developer was pending adjudication before the ncdrc ii the appellant had paid the stamp duty and purchased the e stamp paper bona fide in order to facilitate the completion of the transaction pertaining to the residential flat iii in order to demonstrate the readiness and willingness of the appellant before the ncdrc it was necessary for the appellant to continue to retain the e stamp paper pending the disposal of the proceedings iv the e stamp paper as a matter of fact would have been used if the adjudication by the ncdrc had resulted in a resolution of the dispute by removing some of the offending provisions insisted by the developer and v following the order of the ncdrc the appellant exercised the ca 5970 2021 6 option to seek a refund in terms of a judicial order of the competent forum 10 in this backdrop counsel has relied on the provisions of sections 47 48 and 52a of the maharashtra stamp act 1958 it has been submitted that the provisions of section 48 3 which prescribe a period of six months from the date of purchase of stamp for filing an application for refund would have no application where the case is not covered by the provisions of section 47 in such a situation it was urged that section 52a would enure to the benefit of the appellant in this context counsel for the appellant relied on a judgment of a two judge bench of this court in committee gfil vs libra buildtech private limited and others 2 11 opposing the submissions of the appellant mr rahul chitnis chief standing counsel for the state of maharashtra has urged that i the application filed by the appellant was specifically under the provisions of section 47 of the maharashtra stamp act 1958 ii once the appellant has conceded that the application was filed with reference to section 47 the period of limitation prescribed in section 48 would squarely stand attracted iii as a matter of fact the application for refund of stamp duty would be relatable to the provisions of section 47 a of the act and 2 2015 16 scc 31 ca 5970 2021 7 iv in these circumstances the appellate authority was justified in coming to the conclusion that the application for refund was barred by limitation the rival submissions fall for our analysis 12 chapter 5 of the maharashtra stamp act 1958 is titled allowances for stamps in certain cases section 47 which deals with allowance for spoiled stamps provides as follows 47 allowance for spoiled stamps subject to such rules as may be made by the state government as to the evidence to be required or the inquiry to be made the collector may on application made within the period prescribed in section 48 and if he is satisfied as to the facts make allowance for impressed stamps spoiled in the cases hereinafter mentioned namely a the stamp on any paper inadvertently and undesignedly spoiled obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person b the stamp on any document which is written out wholly or in part but which is not signed or executed by any party thereto c the stamp used for an instrument executed by any party thereto which 1 has been afterwards found by the party to be absolutely void in law from the beginning 1a has been afterwards found by the court to be absolutely void from the beginning under section 31 of the specific relief act 1963 2 has been afterwards found unfit by reason of any error or ca 5970 2021 8 mistake therein for the purpose originally intended 3 by reason of the death of any person by whom it is necessary that it should be executed without having executed the same or of the refusal of any such person to execute the same cannot be completed so as to effect the intended transaction in the form proposed 4 for want of the execution thereof by some material party and his inability or refusal to sign the same is in fact incomplete and insufficient for the purpose for which it was intended 5 by reason of the refusal of any person to act under the same or to advance any money intended to be thereby secured or by the refusal or non acceptance of any office thereby granted totally fails of the intended purpose 6 becomes useless in consequence of the transaction intended to be thereby effected by some other instrument between the same parties and bearing a stamp of not less value 7 is deficient in value and the transaction intended to be thereby effected had been effected by some other instrument between the same parties and bearing a stamp of not less value 8 is inadvertently and undesignedly spoiled and in lieu whereof another instrument made between the same parties and for the same purpose is executed and duly stamped provided that in the case of an executed instrument except that falling under sub clause la no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled or has been already given up to the court to be cancelled explanation the certificate of the collector under section 32 that the full duty with which an instrument is chargeable has been paid is an impressed stamp within the meaning of this section emphasis supplied ca 5970 2021 9 13 section 47 is subject to the rules which are made by the state government in regard to the evidence to be required or enquiry to be made the provision stipulates that the collector may make allowance on an application seeking an allowance for impressed stamps spoiled in the cases which are set out in clauses a to c the opening words of section 47 also indicate that the application under section 47 has to be made within the period which is prescribed by section 48 the prefatory words of section 47 advert to impressed stamps spoiled in the cases which are contained in clauses a to c clause a deals with a situation where the stamp on any paper is inadvertently or undesignedly spoiled obliterated or rendered unfit for the purpose intended either by an error in writing or by any other means before the instrument written on it is executed by any person the object of clause a is to ensure that an allowance is made for impressed stamps which are spoiled inadvertently or unintentionally or where the stamp paper is rendered unfit for the purpose for which it was intended that is why the expressions which have been used in clause a are spoiled obliterated or rendered unfit for the purpose 14 section 47 covers three classes of cases within it i spoiled ii obliterated and iii unfit for the purpose by an error in writing or any other means it is contended by the state that the case of the appellant would fall within the purview of the third category since it was rendered unfit for the purpose i e the purpose of purchase of the property this submission thus places reliance on the expression purpose used in the provision the submission does not accord with a plain reading of the provision the expression any other means must be read ca 5970 2021 10 in the context of the words which immediately precede it namely error in writing the expression by any other means would indicate that the legislature intended to refer to defacement of a stamp paper in any manner analogous to an error in writing the instrument on the stamp paper any other means refers to any other modality by which the stamp paper is rendered unfit for the purpose for which it was purchased moreover the prefatory words in section 47 state that the collector must be satisfied that the stamp is spoiled clauses a to c lay down the cases that are covered within the ambit of the expression spoiled stamps the emphasis of section 47 is not on the purpose but on unfit stamps therefore a case where the stamp has not been utilized at all because it is not needed subsequent to the purchase will not fall within the purview of section 47 only those cases where the stamp is unfit for the purpose by an error in writing or any other means would be covered by the provision it is not the case of the appellant that the stamp paper has been spoiled or obliterated or rendered unfit for the purpose for which it was required in the present case it is common ground that the stamp paper is not spoiled but the purpose for which the stamp was purchased has become redundant in view of the judgment of the ncdrc therefore there would be no occasion to apply the provisions of clause a of section 47 15 clause c of section 47 begins with the expression stamp used for an instrument executed by any party thereto and is followed by eight sub clauses in other words clause c of section 47 applies only where a stamp paper has been used for an instrument which has been executed by one of the parties to ca 5970 2021 11 the instrument that is why for instance sub clause 2 refers to the instrument being subsequently found unfit either by reason of an error or mistake for the purpose for which it was originally intended sub clause 4 adverts to a situation where the instrument has not been executed by a material party and by his inability or refusal to sign it renders the instrument incomplete and insufficient for the purpose for which it was intended clause c of section 47 has no application to the facts of the present case since it is common ground that the stamp was not used for an instrument already executed by any party thereto 16 now it is in this backdrop that it becomes necessary to advert to section 48 of the act section 48 provides as follows 48 application for relief under section 47 when to be made the application for relief under section 47 shall be made within the following period that is to say 1 in the cases mentioned in clause c 5 within six months of the date of the instruments provided that where an agreement to sell immovable property on which stamp duty is paid under article 25 of the schedule i is presented for registration under the provisions of the registration act 1908 and if the seller refuses to deliver possession of the immovable property which is the subject matter of such agreement the application may be made within two years of the date of the instrument or where such agreement is cancelled by a registered cancellation deed on the grounds of dispute regarding the premises concerned inadequate finance financial dispute in terms of agreed consideration or afterwards found to be illegal construction or suppression of any other material fact the application may be made within two years from the date of such registered cancellation deed 2 in the case when for unavoidable circumstances any instrument for which another instrument has been substituted cannot be given up to be cancelled the application may be ca 5970 2021 12 made within six months after the date of execution of the substituted instrument 3 in any other case within six months from the date of purchase of stamp 17 section 48 begins with the statement that the application for relief under section 47 shall be made within the periods which are indicated in clauses 1 2 and 3 in other words the periods of limitation which are prescribed in clauses 1 2 and 3 are in respect of those cases which are governed by section 47 clause 1 stipulates that for cases governed by clause c 5 the period within which the application has to be filed will be six months of the date of the instrument clause 2 specifies that in case where for unavoidable circumstances any instrument for which another instrument has been substituted cannot be given up to be cancelled in such an event the application may be made within six months after the date of execution of the substituting instrument clause 3 which is a residuary provision provides for a limitation of six months from the date of the purchase of stamp 18 the revenue authorities rejected the application filed by the appellant on the ground that the application was not filed within six months from the date of the purchase of the stamp paper treating the case to fall within the residuary provision in section 48 of the act this view has been accepted by the single judge of the bombay high court what this view misses is that section 48 in its entirety applies only to those cases where the application for relief is governed ca 5970 2021 13 by section 47 if the application for refund is not with reference to the provisions of section 47 the period of limitation in section 48 clearly has no application since the application of the appellant does not fall within the purview of any of the clauses in section 47 the 6 month limitation period prescribed in section 48 would not be applicable to the application for allowance filed by the appellant 19 having observed that the application of the appellant for allowance is not covered by the section 47 it is imperative to determine if it falls within the purview of any other provisions of the act section 49 provides that allowance can be made without any limit of time for stamp papers that are used as printed forms of instruments by any banker or company if the forms are not required by the banks or the companies thus the application of the appellant is not covered by section 49 section 50 states that allowance for misused stamps can be made the provision brings within the purview of the term misused stamps the stamps of greater value than required or stamps of description other than that prescribed by any rules or stamps that are useless since the instrument is written in contravention of the provisions or where a stamp has been used when the instrument is not charged with stamp duty section 50 only covers those cases where inadvertent mistakes are made in the stamp paper therefore the case of the appellant is not covered by section 50 since there is no mistake in the e stamp be it with regard to the value or description section 51 lays down the procedure for seeking allowance for cases that fall under section 47 49 and 50 and is thus of no application to the appellant s claim 20 now it is important to refer to section 52 of the act which provides as follows ca 5970 2021 14 52 allowance for stamps not required for use when any person is possessed of a stamp or stamps which have not been spoiled or rendered unfit or useless for the purpose intended but for which he has no immediate use the collector shall repay to such person the value of such stamp or stamps in money deducting thereform such amount as may be prescribed by rules made in this behalf by the state government upon such person delivering up the same to be cancelled and proving to the collector s satisfaction a that such stamp or stamps were purchased by such person with a bona fide intention to use them and b that he has paid the full price thereof and c that they were so purchased within the period of 1 six months next preceding the date on which they were so delivered provided that where the person is a licensed vendor of stamp the collector may if he thinks fit make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid emphasis supplied section 52 deals with provision of allowance in case of stamps that are not required for use there are two kinds of stamps that are not required for use the first is where the stamp is spoiled as covered by section 47 of the act the second is where the stamp is not spoiled but the stamp is not needed since the purchaser has no use of it section 52 specifically excludes the first of category since it is already covered by section 47 the provision only applies to the class in the second category thus section 52 covers stamps that are not spoiled but which are of no use to the applicant by the occurrence of any subsequent event that renders the purpose of purchase of stamp void or nugatory for the application of section 52a the applicant must have purchased the stamp on the payment of full price with a bona fide intention to use it however within six months from the purchase of the stamp the purpose of the purchase has not ca 5970 2021 15 been fulfilled such a situation can arise in multiple circumstances for example a person may have obtained a stamp paper for purchasing a building however before the agreement of sale could be executed the building turns to shambles after an earthquake hits the area in such a case the stamp paper has no use this may also cover a case where the seller has taken back his consent to sell the property after the purchase of the stamp paper in such cases the stamp purchased will not have any use since the purpose for which it was purchased could not materialize 21 it could be argued that the use of the words for which he has no immediate use in section 52 would only covers cases where the purpose for the purchase of the stamp is still valid but the execution of the purpose if delayed and not immediate such an interpretation however is erroneous in view of the holistic reading of the provision the use of the phrase immediate must be read in the context of the limitation period prescribed by the provision since a six month limitation period has been imposed in section 52 for the cases that fall within its purview the use of the phrase no immediate use should be interpreted to mean either the permanent abandonment of the purpose or a delay of more than six months from the purchase of the stamp in the execution of the purpose 22 however section 52 would only apply to those cases where the applicant had knowledge that the stamp purchased was not be required for use within six months from the date of purchase the provision cannot be arbitrarily applied to cases where the purchaser of the stamp had no knowledge that the stamp ca 5970 2021 16 would not be required for use within six months from the purchase of the stamp in the instant case the appellant had no knowledge of the fact that the stamp was not needed within six months from the purchase of it he was in a bona fide contest over his rights with the builder therefore the case of the appellant would not fall under section 52 of the act as well 23 it has been contended by the counsel for the appellant that the case of the appellant falls within the purview of section 52a of the act now it becomes necessary to advert to the provisions of section 52a which provides as follows 52a allowance for duty 1 notwithstanding anything contained in sections 47 50 51 and 52 when payment of duty is made by stamps or in cash as provided for under sub section 3 of section 10 or section 10a or section 108 and when the amount of duty paid exceeds rupees one lakh the concerned collector shall not make allowance for the stamps or the cash amount paid under the challans which are spoilt or misused or not required for use but shall after making necessary enquiries forward the application with his remarks thereon to a the additional controller of stamps for the cases handled by the collectors working in the mumbai city district and mumbai suburban district and b the concerned deputy inspector general of registration and deputy controller of stamps of the division for the cases handled by the collectors other than those mentioned in clause a 2 the additional controller of stamps or the concerned deputy inspector general of registration and deputy controller of stamps of the division as the case may be on receiving such application consider the same and decide whether such allowance shall be given or not and accordingly shall grant the same if the amount of allowance does not exceed rupees ten lakh and if it exceeds rupees ten lakh shall submit such application with his remarks thereon to the chief controlling revenue authority for decision ca 5970 2021 17 3 the chief controlling revenue authority on receiving such application shall decide on merit whether such allowance shall be given or not and pass such order thereon as he thinks just and proper which shall be final and shall not be questioned in any court or before any authority 24 section 52a is prefaced with a non obstante clause which operates notwithstanding anything contained in sections 47 50 51 and 52 section 52a stipulates that when the amount of stamp duty paid exceeds rs 5 lakhs the concerned collector shall not make an allowance for the stamps or the cash amount paid under the challans but shall after making necessary enquiries forward the application with his remarks to the additional collector of stamps for cases handled by the collectors working in the mumbai city district and mumbai sub urban districts and the concerned deputy inspector general of registration and deputy controlling of stamps for cases in other regions 25 in view of section 52a 2 of the act the additional collector of stamps or the dig as the case may be on assessing the application has to decide whether allowance should be given or not and shall grant it if the amount of allowance does not exceed rs 20 lakhs if the amount exceeds rs 20 lakhs the application has to be submitted to the chief controlling revenue authority the chief controlling revenue authority on receiving the application is required to decide on merits whether or not the allowance should be given the provisions of section 52a were substituted with effect from 1 may 2006 by maharashtra act 12 of 2006 by an amendment the amount of rs 5 lakhs which has been specified in sub section 1 was enhanced from rs 1 lakh by maharashtra act 20 ca 5970 2021 18 of 2015 with effect from 24 april 2015 likewise in sub section 2 the amount of rs 20 lakhs stands enhanced from the earlier amount of rs 10 lakhs by the same amending provision 26 the provisions of section 52a as noticed above have overriding force and effect inter alia on the provisions of sections 47 50 51 and 52 it is pertinent to note that the non obstante clause does not apply to sections 48 and 49 of the act while section 48 is a limitation clause applicable to cases that are covered by section 47 section 49 applies to a corporation where no limitation period has been prescribed section 52a can be applied to the appellant s case only if the provision is interpreted to override the limitation period laid down in the preceding provisions and if it is regarded as a residual substantive provision that would cover all cases that are not covered by any of the provisions we will now consider the validity of such an interpretation 27 if section 52a was enacted with the intent to override the limitation prescribed by sections 50 51 and 52 then section 48 ought to have also been included specifically since section 48 is the limitation provision applicable to section 47 section 48 is not incorporated in the non obstante provision of section 52 a this is hence intrinsic material to indicate that the purpose of the non obstante clause in section 52a was to override the jurisdiction of the adjudicating authority i e the collector under sections 47 50 51 and 52 to decide the claims for allowances section 52a specifically divests the power of the collector to decide the claims of allowance falling within those provisions and vests the power to other authorities if the payment of stamp duty exceeds rupees five ca 5970 2021 19 lakhs in those cases though the application is to be made to the collector he will have no adjudicatory capacity the collector must forward the application to the concerned authority as mentioned in section 52a along with remarks and such authority would have the power to decide the claim the interpretation that section 52a only overrides the authority of the collector in adjudicating the case is evident since the provision does not override section 49 where the adjudicating officer is the chief controlling revenue authority in such a case section 52a cannot be considered as a residual clause by applying it to classes of cases that do not fall within the purview of any other provisions a contrary interpretation would create an artificial class based on economic capacity as cases where the stamp duty paid exceeds rupees five lakhs will alone be adjudicated without application of any limitation period as a residual case while cases falling within the same class but where stamp duty paid is less than rupees five lakhs cannot take recourse to the provision it is an established principle of interpretation that an interpretation that furthers the constitutionality of a provision will have to be undertaken an interpretation which leads to an invidious discrimination must be eschewed thus the intendment of section 52a was neither to cover the applications that are not brought under any of the preceding substantive clauses nor to override the limitation clauses 28 evidently and for the reasons that we have indicated above the application filed by the appellant did not fall within the ambit of sections 47 52 and 52a it is true that the application for refund was titled with reference to the provisions of section 47 but it is well settled that a reference of a wrong statutory provision ca 5970 2021 20 cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision 29 in the present case the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer there was a dispute with the developer which led to the institution of the proceedings before the ncdrc there was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings the ncdrc allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or in the alternative to seek a refund with interest the appellant having exercised the latter option applied within two months from the order of the ncdrc for the grant of refund the conduct of the appellant therefore cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty such an application must be filed within a reasonable period 30 in committee gfil supra a two judge bench of this court was dealing with the issue of limitation prescribed in the indian stamp act 1899 in this case an auction sale of immovable properties was held by a committee constituted by this court successful bidders deposited with the committee the entire sale consideration along with the stamp duty however the transaction failed due to reasons beyond the control of the parties the court cancelled the transaction ca 5970 2021 21 and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the state government for refund of the stamp duty the applications of the auction purchasers seeking refund of stamp duty was rejected on the ground that the applications were time barred an application against the rejection of the refund applications was filed before this court this court allowed the application on three grounds i the transaction which was court monitored could not be fulfilled for reasons beyond the control of the auction purchasers no act of the court should prejudice a person ii in view of the principle of restitution embodied in section 65 of the contract act any advantage received by a person under a void contract or a contract that becomes void is bound to be restored and iii in light of equity and justice the six months limitation period prescribed in section 50 of the indian stamp act 1899 must be read to mean six months from the date of the order of this court 31 we are conscious of the fact that as a general rule of law the right to refund is a statutory creation a refund can be sought in terms envisaged by statute as discussed above the case of the appellant is not specifically barred by any substantive provision it is an established principle that this court while exercising its power under article 142 of constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution 3 therefore if a statute prescribes a limitation period this court must be slow to interfere with the delay under article 142 3 ar anthulay v rs nayak 1988 2 scc 602 union carbide corporation v union of india 1991 4 scc 584 supreme court bar association v union of india 1998 4 scc 409 ca 5970 2021 22 however in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute this court under article 142 will have the power to do complete justice by condoning the delay we are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the ncdrc the application cannot be rejected on the ground of delay a litigant has no control over judicial delays a rejection of the application for refund would violate equity justice and fairness where the applicant is made to suffer the brunt of judicial delay therefore this is a fit case for the exercise of the power under article 142 of the constitution 32 for the above reasons we allow the appeal and set aside the impugned judgment and order of the learned single judge of the bombay high court dated 22 november 2018 as a consequence we direct that the appellant would be entitled to a refund of the stamp duty which was paid at the time of the purchase of the e stamp paper conditional on the appellant returning the e stamp paper to the collector of stamps mumbai the refund shall be processed within a period of one month of the delivery of the e stamp paper to the collector the appellant would be entitled to interest at the rate of 6 per annum from 16 july 2016 until the date of refund in the circumstances of the case there shall be no order as to costs ca 5970 2021 23 33 pending applications if any stand disposed of j dr dhananjaya y chandrachud j b v nagarathna new delhi september 24 2021 ckb 410 2021_crl a no 000422 000422 2021 makwana makwana koli anr dhananjaya y chandrachud the high court the high court court 2025 10 05 as they may be for the purpose of deciding whether or not to grant bail the consent of parties cannot obviate the duty of the high court to indicate its reasons why it has either granted or refused bail this is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other the rights of the victims and their families are at stake as well these are not matters involving the private rights of two individual parties as in a civil proceeding the proper enforcement of criminal law is a matter of public interest we must therefore disapprove of the 25 manner in which a succession of orders in the present batch of cases has recorded that counsel for the respective parties do not press for further reasoned order if this is a euphemism for not recording adequate reasons this kind of a formula cannot shield the chandra v central chandra v central sarkar v ashis yadav v state mohammad v shiv lal v state sonu v sonu mahipal v rajesh yadav v state yadav v state yadav v state yadav v state yadav v state tewari v state upadhyay v sudarshan sarkar v ashis reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 422 of 2021 arising out of slp crl no 790 of 2021 ramesh bhavan rathod appellant versus vishanbhai hirabhai makwana makwana koli anr respondents with criminal appeal no 423 of 2021 slp crl no 1245 2021 with criminal appeal no 426 of 2021 slp crl no 1248 2021 with criminal appeal nos 424 425 of 2021 slp crl no 1246 1247 2021 and with criminal appeal no 427 of 2021 slp crl no 1249 2021 1 j u d g m e n t dr dhananjaya y chandrachud j 1 this batch of five appeals arises from orders of the high court of gujarat granting bail under section 439 of the code of criminal procedure 19731 to six persons who have been implicated in five homicidal deaths 2 a first information report fir being cr no 11993005200314 was registered on 9 may 2020 at police station aadesar district east kachchh gandhidham for offences under sections 302 143 144 147 148 149 341 384 120b 506 2 and 34 of the indian penal code sections 25 1 b a 27 and 29 of the arms act and section 135 of the gujarat police act the appellant ramesh bhavan rathod is the informant on whose statement the fir was registered at 1930 hours in respect of an incident which took place at 1300 hours the incident took place in village hamirpur which is at a distance of 20 kms from the police station the incident which led to the commission of five murders had its genesis in a land dispute the informant alleged that he and his brother pethabhai had gone to their farm at 6 00 am at 1 pm the informant pethabhai and his brother in law akhabhai were returning home in a scorpio vehicle with five other persons when the vehicle reached the untarred road passing through the farm of lakha hira koli and kanji bijal koli these two persons came out along with lakha hira koli lakha koli dashed his tractor on the front portion of the scorpio vehicle kanji koli parked his tractor on the rear side of the scorpio behind which another sumo vehicle came to be stationed the scorpio and its occupants were waylaid as the informant 1 crpc 2 and others attempted to run away from the scene he saw the homicidal incident which he describes in the following terms at that time i saw that dhama ghela koli devendrsinh alias lalubha ghelubha vaghela vishan hira koli bharat mamu koli dilip mamu koli ramshi hira koli pravin hira koli bhaghubha hasubha vaghela mohansang umedasng vaghela and vanraj karsan koli and dinesh karsan koli all come with weapons pistol dhariya knife from the thorny fence nearby in which dhama gela koli and devendrasinh alias lalubha gelubha vaghela and visan hira koli and bharat mamu koli had fired rounds from rifles in their hand targeting akhabhai and others at that time akhabhai jeshangbhai umat my brother pethabhai bhavanbhai rathod and amara jeshang umat and lalji akhabhai umat and vela panchabhai umat injured due to firing and laying on land and that time lakha hira koli s wife kanji bijal koli s wife lakhman bijal koli s wife and dhama ghela koli s wife and vishan hira koli s wife also come there their name is i do not know and visan hira kofi talk with akhabhai that why you are cultivating my father and grand father s land that is our land we also said before that this land you do not cultivate so today your life is over this was said by visan hira koli and thereafter dilip mamu koli ramshi hira kofi bhaghubha hasubha vaghela mohansang umedsang vaghela and prabhu ghela koli with dhariya in their hands and in the hands pravin hira koli siddhrajsinh bhaghubha vaghela kheta parbat koli vanraj karsan koli and dinesh karsan kofi with lathi wooden stick and all together assaulted blindly with dhariya lathi over the head and body of akhabhai jeshangbhai umat and my brother pethabhai bhavanbhai rathod and amara jeshang umat and lalji akhabhai umat and vela panchabhai umat and those people when assaulted that time all five are shouting save save but those people are in large gathering so i cannot go near so i cannot save those five those because they will kill me so i ran away from and i go to my village 3 the incident resulted in the death of five persons among the twenty two accused are vishan heera koli a 6 pravin heera koli a 10 sidhdhrajsinh bhagubha vaghela a 13 kheta parbat koli a 15 vanraj karshan koli a 16 and dinesh karshan akhiyani koli a 17 the post mortem was conducted on 10 may 2020 a panchnama is alleged to have been conducted at the scene of offence on the 3 next day i e on 10 may 2020 resulting in the recovery of inter alia two country made guns two indigenous counterfeit guns four dhariyas and one wooden stick 4 on 13 may 2020 a cross fir was registered at the behest of vishan heera makwana koli being fir no 11993005200315 at police station aadesar the informant in the cross fir claims to be an original resident of village hamirpar and is presently residing at village anjar the fir states that after the lockdown had been declared on 25 march 2020 the informant had left anjar to go to village hamirpar about fifteen years ago certain agricultural land had been sold to another person who subsequently gave it for cultivation to akhabhai akhabhai was refusing to give the fields for cultivation to the informant as a result of which a quarrel had taken place on 7 may 2020 the informant s motor cycle had been taken away by the police the issue had been settled at the intervention of persons belonging to the community and no complaint was filed according to the cross fir on 9 may 2020 the informant vishan sent his nephew to the police station together with akhabhai to retrieve the motor cycle the cross fir narrates vishan s version of the incident which took place on 9 may 2020 in the following terms we have decide to kill akhabhai hence i myself along with my brother lakhbhai hira koli dinesh karshan koli and lalubha ghelubha vaghela sat in ritz car and proceeded towards bhimasar at the time i was driving the said car and i tried to dash the said car with akhabhai and tried to kill him but akhabhai ran away nearby and we came to our field wadi there after around 12 0 clock noon akhabhai ring me on my mobile phone and said that why you have tried to dashed by car of lalubha i have given false reply that i am sitting on my field wadi i am not involved akhabhai told me we are coming to you field wadi for quarrel be ready for quarrel at that time i myself along with my brother lakha hira koli ramsi koli pravin dhama gela koli devendrasinh iliyas lalubha vaghela bharat mamu koli dilip mamu koli bhagubha hansubha vaghela and his son monsang umedsang vaghela prabhu gela koli kheta parbar koli vanraj karshan koli dinesh darshan koli were present their i 4 have told this fact to them that jeseng umat along with his men are coming at our wadi for quarreling with us so we all armed with weapons we came near by our field s boundary and we all are become ready for quarrel and sat nearby lakhman bijal s field and that time white color jeep came that at about place near about wadi ramesh bhavan rathod come down for jeep along with dhariya in his hand akhabhai came down with his gun akhabhai abused me i have pride to save at that time ramesh bhavan rathod given blow with dhariya i have tried to save myself and i have lifted up my left hand so dhariya blow caused injury in my left hand i have fallen down on earth and blood coming out for my left hand at the time akhabhai given blow of gun on my brother namely ramsi on his hand at that time akha son lalji amra jeseng umat vela pancha umat petha bhavan rathod akhabhai s younger son dharmendra papu gabha umat came down from jeep and tried to attack on me at that time my brother pravin dhama gela koli devendrasinh iliyas lalubha vaghela bharat mamu koli dilip mamu koli bhagubha hansubha vaghela and his son mohansang umedsang vaghela prabhu gela koli kheta parbat koli vanraj karsan koli dinesh karsan koli came along with the arms at that time akho and his person s tried to ran away with the scorpio jeep my brother namely lakhabhai dashed that jeep by tractor at that time my another cousin brother kanji bijal came with the another tractor and lakhman bijal came with the sumo jeep and dashed with the jeep of akhabhai at that time our ladies came down during quarrel ramesh bhavan rathod papu gabha umat akhabhai son dharmendra ran away at that time the our persons who came there assaulted with the dhariya and lakdi s on akhabhai velabhai pethabhai amrabhai and lalji and this quarrel i have been injured 5 vishan was arrested on 18 may 2020 a further statement of the informant in the original fir dated 9 may 2020 was recorded on 3 june 2020 after investigation the charge sheet was submitted by the investigating officer against vishan and twenty two co accused on 31 august 2020 an application for interim bail moved by vishan on medical grounds was rejected by the sessions judge bhachau kachchh taking note of the fact that the accused had produced fake documents for the purpose of obtaining bail an application seeking regular bail under section 439 of the crpc was rejected by the additional sessions judge bhachau on 4 december 2020 5 6 among the twenty two accused who are named in the charge sheet these proceedings arise out of the applications for bail which were moved before the high court on behalf of the six persons namely vishan heera koli accused no 6 pravin heera koli accused no 10 sidhdhrajsinh bhagubha vaghela accused no 13 kheta parbat koli accused no 15 vanraj karshan koli accused no 16 dinesh karshan akhiyani koli accused no 17 7 the orders passed by the high court granting bail to the above persons are tabulated below sl no name of the accused accused no date of order 1 vishan heera koli 6 21 december 2020 2 pravin heera koli 10 21 december 2020 3 sidhdhrajsinh bhagubha vaghela 13 22 october 2020 4 kheta parbat koli 15 21 december 2020 5 vanraj karshan koli 16 19 january 2021 6 dinesh karshan akhiyani koli 17 20 january 2021 at this stage it is necessary to note that a 10 and a 15 were both granted bail on 21 december 2020 on the basis of parity claimed on the basis of the order dated 22 october 2020 granting bail to a 13 the orders dated 19 january 2021 granting bail to a 16 and to a 17 on 20 january 2021 are also based on parity 6 8 chronologically the first order of the high court granting bail was to sidhdhrajsinh bhagubha vaghela a 13 on 22 october 2020 the high court observed thus 14 having considered the rival submissions and having gone through the materials on record it appears that though the name of the applicant and is shown in the fir for the alleged offences punishable under sections 302 143 144 147 148 149 341 384 120b 506 and 34 of the i p c offence punishable under section 25 1 b a 27 and 29 of the arms act and section 135 of the gujarat police act for the incident which took place on 9th may 2020 on perusal of the charge sheet papers it appears that the complainant in the subsequent statement dated 3rd june 2020 which has been recorded after 25 days from the date of incident the overt tact which was attributed in the fir is missing though the complainant has stated that the applicant was present but no role is attributed in the subsequent statement which was recorded on 3rd june 2020 wherein the details with regard to chronology of events which took place at the place of the incident on 9th may 2020 is in effect substituted by the complainant in the additional statement dated 3rd june 2020 by narrating altogether different details at this juncture this court is not going into the details of the incident as it may affect the trial at the later point of time suffice is to say prima facie appears that the applicant has been involved in alleged offences due to pending proceedings of the previous offences and enmity with the complainant side 9 in addition the single judge observed that i the accused was in jail since 19 may 2020 ii the charge sheet had been filed after investigation and iii the trial was likely to take time as 110 witnesses were to be examined reliance was placed on the decision of this court in sanjay chandra v central bureau of investigation2 the orders granting bail to a 10 and a 15 21 december 2020 to a 16 19 january 2021 and to a 17 20 january 2021 are based on parity 2 2012 1 scc 40 7 10 the main accused vishan a 6 was granted bail on 21 december 2020 the reasons adduced by the single judge of the high court are contained in paragraphs 7 8 and 9 of the order which reads thus 7 having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case nature of allegations gravity of offences role attributed to the accused without discussing the evidence in detail this court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail 8 looking to the overall facts and circumstances of the present case i am inclined to consider the case of the applicant 9 this court has also taken into consideration the law laid down by the hon ble apex court in the case of sanjay chandra vs central bureau of investigation reported in 2012 1 scc 40 11 the allegations against all the accused in the present batch of appeals arise out of the same incident all the appeals have hence been heard together 12 mr vinay navare senior counsel and ms jaikriti s jadeja counsel have appeared in support of the appeals all of which had been filed by the informant mr nikhil goel counsel appeared on behalf of the respondent accused in pursuance of the notice issued on 5 february 2021 mr aniruddha p mayee has entered appearance on behalf of the state of gujarat insofar as the accused are concerned the position before the court as recorded in the order dated 5 april 2021 reads thus slp crl 790 2021 sole accused represented by mr nikhil goel slp crl 1245 2021 sole accused no appearance entered despite service slp crl 1246 47 2021 two accused represented by mr purvish malkan and mr nikhil goel slp crl 1248 2021 sole accused no appearance entered despite service slp crl 1249 2021 sole accused represented by mr j s atri instructed by mr haresh raichura 8 since in two of the special leave petitions namely special leave petition crl nos 1245 and 1248 of 2021 no appearance had been entered on behalf of the accused despite service of notice this court by its order dated 5 april 2021 requested mr nikhil goel to represent them we appreciate the able assistance which has been rendered by mr nikhil goel as an officer of the court who has acted as an amicus curiae for the two unrepresented accused as well 13 mr vinay navare learned senior counsel appearing on behalf of the appellant informant submits that the primary basis on which the first order granting bail was passed by the high court in the case of sidhdhrajsinh bhagubha vaghela a 13 on 22 october 2020 is that while the fir was registered on 9 may 2020 the statement of the informant was recorded on 3 june 2020 in which there have been substantial changes in the genesis of the incident including the nature of the weapons while the allegation in the fir is that vishan a 6 fired several rounds from a rifle together with other persons the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon the following submissions have been urged i the cross fir lodged by vishan a 6 on 13 may 2020 indicates that an incident had taken place on 9 may 2020 ii during the course of the incident five homicidal deaths resulted on the side of the informant of the fir dated 9 may 2020 iii the cross fir lodged on 13 may 2020 contains a reference to a the accused being armed with weapons b pre meditation on the part of the accused to waylay and assault the side of the informant and 9 c the assault being committed by the accused as the deceased were attempting to flee after their vehicle had been cornered by two tractors belonging to the side of the accused iv the presence of the accused and the role attracted to them has been spelt out not only in the fir but it is evident from the cross fir which was subsequently registered on 13 may 2020 at the behest of vishan a 6 v the cross fir which sets out the version of the accused would indicate that the accused were the aggressors and vi whether the five deaths were caused as a result of firearm injuries as alleged in the fir dated 9 may 2020 or due to dhariyas as alleged in the statement recorded on 3 june 2020 is not relevant at this stage the presence of the accused the pre meditation on their part the assault committed on persons belonging to the side of the informant and the resultant five homicidal deaths which form the genesis of the incident should be sufficient to deny bail 14 on the above premises it has been urged that the high court has committed a grievous error in granting bail in the first instance on 22 october 2020 and in following the earlier order on the basis of parity moreover it has been submitted that the order granting bail to vishan a 6 who is the main accused on 21 december 2020 does not contain any reasons whatsoever it was urged that while granting bail the chief justice has merely observed that the advocates who appeared on behalf of the respective parties do not press for further reasoned order this it was urged is an anathema to criminal jurisprudence the high court while exercising its jurisdiction under section 439 is required to apply its mind objectively and indicate reasons for the grant of bail 10 this duty cannot be obviated it was urged by recording that the counsel for the parties did not press for a further reasoned order 15 the submissions urged by mr vinay navare senior counsel have been supported during the course of her submissions by ms jaikriti s jadeja learned counsel in addition adverted to the following circumstances i the registration of three prior firs against sidhdhrajsinh bhagubha vaghela a 13 ii the observation of the high court while granting bail that the order would not be treated as precedent in any other case on grounds of parity and iii the grant of bail on the basis of parity alone to vanraj karshan koli a 16 kheta parbat koli a 15 pravin heera koli a 10 and dinesh karshan akhiyani koli a 17 16 mr aniruddha p mayee learned counsel appearing on behalf of the state of gujarat has supported the submissions of the appellant in the challenge to the orders granting bail on the following grounds i the grant of bail by the high court to the six accused persons in this batch is not justified having regard to the following circumstances a the main accused vishan a 6 was a resident of anjar and had come to hamirpur b there was an earlier incident which had taken place involving an altercation with the deceased akhabhai c a compromise was arrived at in the course of the dispute with the intervention of the community d as the cross fir by vishan a 6 narrates on 9 may 2020 the conduct of 11 the accused was pre meditated e the incident took place at 1 00 pm when the side of the informant in the fir dated 9 may 2020 was returning from their fields for lunch when they were waylaid and obstructed by vehicles of the accused both at the front and the rear f the side of the accused had collected 22 persons for executing a pre meditated design to assault the group of the informant with deadly weapons g whether or not the rifles had been fired the panchnama notes the recovery of the weapons h both vishan a 6 and sidhdhrajsinh bhagubha vaghela a 13 have criminal antecedents there being earlier firs registered against them i the sessions judge noted that a 6 had even attempted to obtain bail on medical grounds on the basis of a false identity and j the complicity of the accused their intent presence and role are amply supported by the cross fir 17 mr nikhil goel learned counsel appearing on behalf of the accused has on the other hand supported the orders of the high court granting bail on the following submissions i the fir which arises out of the incident of 9 may 2020 implicates as many as 22 persons ii accused 18 22 who are women were granted bail which is not the subject matter of challenge iii eleven accused are still in jail of whom eight persons are alleged to have wielded sharp edged weapons there 12 iv the charge sheet which has been submitted after investigation names 110 witnesses v a charge sheet has been submitted in the cross fir as well vi there was a free fight in the course of the incident on 9 may 2020 resulting in injuries on the side of the accused and five deaths on the side of the informant vii the genesis of the incident as narrated in the fir registered on 9 may 2020 has been substantially altered in the course of the statement of the informant recorded on 3 june 2020 viii the fir made no reference to a free fight between the two groups or to the injuries which were caused to the accused ix the post mortem reports of 10 may 2020 would belie the allegation that the deaths were caused as a result of gunshot injury x an attempt was made to improve upon the allegations in the fir in a subsequent statement of the informant on 3 june 2020 to ensure that the allegations in regard to the weapons used in causing the injuries are made consistent with the post mortem reports which indicate the use of sharp edged weapons xi the allegation in the fir is that five persons on the side of the informant were hit by bullets and were lying on the land which is belied by the post mortem reports not indicating gunshot injuries and xii the nature of the incident is sought to be altered in the statement which was recorded on 3 june 2020 the earlier version which refers to gunshot injuries is replaced with dhariya injuries and by the attempted use of fire arms 13 in summation it has been urged on behalf of the accused that i the presence of the accused at the scene of offence on 9 may 2020 is established by the cross fir ii the post mortem reports would demonstrate that all the injuries were sustained by the deceased with sharp edged weapons and not as a result of fire arms or sticks iii there are three versions of the incident which are contained in the fir the subsequent statement and the cross fir a charge sheet has also been submitted after the investigation of the cross fir iv as many as twenty two persons have been roped in v while the sessions judge had noticed the improvement which was made in the subsequent statement bail was denied only on the basis of the presence of the accused and vi in the event that this court holds that adequate reasons have not been adduced in the order dated 21 december 2020 granting bail to a 6 an order of remand may be warranted 18 the submissions of mr nikhil goel have been buttressed by mr j s atri senior counsel by placing reliance on the decision in sanjay chandra v central bureau of investigation3 learned senior counsel specifically highlighted that the subsequent statement dated 3 june 2020 has materially altered the genesis as well as the details of the incident similar submissions have been urged by mr purvish jitendra malkan learned counsel appearing on behalf of some of the accused by submitting that i this is a case involving an over implication 3 2012 1 scc 40 14 ii the absence of blood marks on the clothes of kheta parbat koli a 15 and on the stick is a pointer to his innocence and iii it was the complainant s side which had committed the initial act of aggression 19 the rival submissions now fall for analysis 20 the first aspect of the case which stares in the face is the singular absence in the judgment of the high court to the nature and gravity of the crime the incident which took place on 9 may 2020 resulted in five homicidal deaths the nature of the offence is a circumstance which has an important bearing on the grant of bail the orders of the high court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence the perversity lies in the failure of the high court to consider an important circumstance which has a bearing on whether bail should be granted in the two judge bench decision of this court in ram govind upadhyay v sudharshan singh4 the nature of the crime was recorded as one of the basic considerations which has a bearing on the grant or denial of bail the considerations which govern the grant of bail were elucidated in the judgment of this court without attaching an exhaustive nature or character to them this emerges from the following extract 4 apart from the above certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however the same are only illustrative and not exhaustive neither there can be any the considerations being a while granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations 4 2002 3 scc 598 15 b reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail c while it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge d frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail this court further laid down the standard for overturning an order granting bail in the following terms 3 grant of bail though being a discretionary order but however calls for exercise of such a discretion in a judicious manner and not as a matter of course order for bail bereft of any cogent reason cannot be sustained 21 the principles governing the grant of bail were reiterated by a two judge bench in prasanta kumar sarkar v ashis chatterjee5 9 it is trite that this court does not normally interfere with an order passed by the high court granting or rejecting bail to the accused however it is equally incumbent upon the high court to exercise its discretion judiciously cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this court on the point it is well settled that among other circumstances the factors to be borne in mind while considering an application for bail are i whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ii nature and gravity of the accusation iii severity of the punishment in the event of conviction iv danger of the accused absconding or fleeing if released on bail v character behaviour means position and standing of the accused vi likelihood of the offence being repeated 5 2010 14 scc 496 16 vii reasonable apprehension of the witnesses being influenced and viii danger of course of justice being thwarted by grant of bail internal citation omitted explicating the power of this court to set aside an order granting bail this court held 10 it is manifest that if the high court does not advert to these relevant considerations and mechanically grants bail the said order would suffer from the vice of non application of mind rendering it to be illegal 22 we are constrained to observe that the orders passed by the high court granting bail fail to pass muster under the law they are oblivious to and innocent of the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction in neeru yadav v state of u p 6 this court has held that while applying the principle of parity the high court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail this court observed 17 coming to the case at hand it is found that when a stand was taken that the 2nd respondent was a history sheeter it was imperative on the part of the high court to scrutinize every aspect and not capriciously record that the 2nd respondent is entitled to be admitted to bail on the ground of parity it can be stated with absolute certitude that it was not a case of parity and therefore the impugned order clearly exposes the non application of mind that apart as a matter of fact it has been brought on record that the 2nd respondent has been charge sheeted in respect of number of other heinous offences the high court has failed to take note of the same therefore the order has to pave the path of extinction for its approval by this court would tantamount to travesty of justice and accordingly we set it aside 6 2014 16 scc 508 17 23 another aspect of the case which needs emphasis is the manner in which the high court has applied the principle of parity by its two orders both dated 21 december 2020 the high court granted bail to pravin koli a 10 and kheta parbat koli a 15 parity was sought with sidhdhrajsinh bhagubha vaghela a 13 to whom bail was granted on 22 october 2020 on the ground as the high court recorded that he was assigned similar role of armed with stick sic again bail was granted to vanraj koli a 16 on the ground that he was armed with a wooden stick and on the ground that pravin a 10 kheta a 15 and sidhdhrajsinh a 13 who were armed with sticks had been granted bail the high court has evidently misunderstood the central aspect of what is meant by parity parity while granting bail must focus upon role of the accused merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established in deciding the aspect of parity the role attached to the accused their position in relation to the incident and to the victims is of utmost importance the high court has proceeded on the basis of parity on a simplistic assessment as noted above which again cannot pass muster under the law 24 the narration of facts in the earlier part of this judgement would indicate that on 22 october 2020 a single judge of the high court granted bail to sidhdhrajsinh a 13 the single judge noted that the name of a 13 is shown in the fir for the incident which took place on 9 may 2020 the circumstance which weighed with the single judge was that the informant in the subsequent statement which was recorded twenty five days after the fir on 3 june 2020 does not advert to overt act which was attributed in the fir though the presence of a 13 is shown no specific role is attributed to him in the subsequent statement observing that the details in regard to the chronology of events which took place on 9 may 2020 is in effect substituted in the 18 subsequent statement dated 3 june 2020 the high court held that it appears that a 13 was roped in due to the pendency of previous proceedings and enmity with the side of the informant holding that this was sufficient to grant bail the learned judge observed 15 learned advocates appearing on behalf of the respective parties do not press for further reasoned order emphasis supplied 25 the order which was passed on 22 october 2020 in the case of a 13 was relied upon on grounds of parity in the case of pravin a 10 and kheta a 15 by orders of a single judge of the high court dated 21 december 2020 in the case of vishan a 6 bail was granted on 21 december 2020 by the single judge who had passed orders dated 22 october 2020 in the case of a 10 and a 15 the only reasons which have been indicated in the order of the single judge is that bail was being granted taking into consideration the facts of the case the nature of the allegations gravity of offences and role attributed to the accused thereafter by an order dated 19 january 2021 bail was granted to vanraj a 16 purely on the basis of parity on 20 january 2021 the order granting bail to vanraj a 16 was followed in the case of dinesh a 17 on the ground of parity 26 from the above conspectus of facts it is evident that essentially the only order which contains a semblance of reasoning is the order dated 22 october 2020 granting bail to a 13 as a matter of fact the submissions which have been made on behalf of the accused substantially dwell on the same line of logic in justifying the grant of bail on the ground that in the subsequent statement dated 3 june 2020 of the informant the genesis and details of the incident which took place on 9 may 2020 as elaborated in the fir have undergone a substantial change 19 27 in granting bail to the six accused the high court has committed a serious mistake by failing to recognize material aspects of the case rendering the orders of the high court vulnerable to assail on the ground of perversity the first circumstance which should have weighed with the high court but which has been glossed over is the seriousness and gravity of the offences the fir which has been lodged on 9 may 2020 adverts to the murder of five persons on the side of the informant in the course of the incident as a result of which offences punishable under sections 302 143 144 147 148 149 341 384 120b 506 2 read with section 34 of the indian penal code were alleged this is apart from the invocation of the provisions of sections 25 1 b a 27 and 29 of the arms act and section 135 of the gujarat police act the fir which was lodged on 9 may 2020 notes that the incident took place at 1 00 pm a group of persons from the side of the informant including the deceased were returning home at about 1 00 pm the genesis of the incident is that the path of their vehicle was blocked both from the front and the rear by tractors of the accused the fir specifically refers to the presence of the accused vishan a 6 sidhdhrajsinh bhagubha vaghela a 13 vanraj karshan koli a 16 kheta parbat koli a 15 pravin heera koli a 10 and dinesh karshan akhiyani koli a 17 it states that the accused had all come to the scene of offence with pistols dhariyas and knives and that initially vishan a 6 and two others had fired from their rifles as a result of which five persons fell to the ground some of these accused vishan a 6 sidhdhrajsinh a 13 vanraj a 16 kheta a 15 pravin a 10 and dinesh a 17 are alleged to have assaulted with dhariyas and lathis over the head and body of akhabhai pethabhai amara lalji and vela all of them were rushed to the government hospital where they were pronounced dead 20 28 four days after the fir was lodged by the informant on 9 may 2020 a cross fir was lodged by vishan a 6 this fir contains a narration of the pre existing dispute over land and to an incident which had taken place on 7 may 2020 which was resolved with the intervention of the community the cross fir dated 13 may 2020 stated that vishan a 6 sent his nephew together with akhabhai to the police station to retrieve his motorcycle the cross fir specifically states that the side of the accused had decided to kill akhabhai and in pursuance of this design he proceeded in his vehicle together with his brother and some of the other accused and tried to kill akhabhai by dashing his car against him the translation of the actual intent in the cross fir is questioned by mr nikhil goel by submitting that correctly translated from gujarati the intent would be to assault and not to kill be that as it may the cross fir indicates the presence of all these accused and of their being armed with weapons to assault the deceased a 6 in fact states that in the course of the incident which took place he was assaulted on his hand with a dhariya the cross fir contains a narration of how akhabhai and the others tried to run away from the scene but were way laid and assaulted the cross fir also then states that several women from the side of the accused came to the scene of occurrence 29 a reading of the cross fir which was lodged by vishanbhai a 6 on 13 may 2020 indicates i an intent on the part of the accused to launch an assault on the deceased ii the manner in which their pre meditated design was sought to be achieved by assaulting akhabhai and the other deceased persons iii an effort was made by akhabhai and the other deceased to run away but this was prevented in the course of the assault and iv the accused had come armed with weapons to execute their intent 21 30 in other words with the contents of the cross fir as they stand it was impossible for any judicial mind while adjudicating upon the applications for the grant of bail to gloss over i the presence of the accused at the scene of occurrence on 9 may 2020 ii the accused being armed with weapons to accost akhabhai and the other persons accompanying him iii the intent to assault them and iv the actual incident in the course of which akhabhai and four other persons of his group were waylaid and assaulted resulting in five homicidal deaths 31 the post mortem reports which have been produced on the record indicate the extensive nature of the bodily injuries which were sustained by each of the five deceased persons it is true that in the fir dated 9 may 2020 it was alleged that the deceased were fired upon as a result of which they fell to the ground whereas in the statement dated 3 june 2020 it has been stated that the injuries were sustained as a result of dhariyas and sticks whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross fir indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused the high court in its first order dated 22 october 2020 was persuaded to grant bail on the specious ground that the details of the incident as they appeared in the subsequent statement of the informant dated 3 june 2020 are at variance with the fir dated 9 may 2020 these are matters of trial the high court has however clearly overlooked the cross fir dated 13 may 2020 lodged by a 6 and the implications of the content of the fir on the basic issue as to whether 22 bail should be granted as a matter of fact it is also important to note that the presence of women on the side of the accused is a fact which is noted in the cross fir itself bail having been granted to a 18 to a 22 has not been the subject matter of the challenge in these proceedings hence it is not necessary to dwell on that aspect any further it is important for the purpose of evaluating this batch of cases at the present stage to also note the invocation of the provisions of the section 149 of the indian penal code 32 our analysis above would therefore lead to the conclusion that there has been a manifest failure of the high court to advert to material circumstances especially the narration of the incident as it appears in the cross fir which was lodged on 13 may 2020 above all the high court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths this is clearly a case where the orders passed by the high court suffered from a clear perversity 33 there is another aspect of this batch of cases which it is necessary to note in the order of the high court dated 22 october 2020 granting bail to sidhdhrajsinh a 13 there was a reference to the submission of the public prosecutor to the criminal antecedents of a 13 bearing on previous firs registered against him in 2017 and 2019 this aspect bearing on the criminal antecedents of a 13 has not been considered in the reasons which have been adduced by the single judge in ash mohammad v shiv raj singh7 this court has held that criminal antecedents of the accused must be weighed for the purpose of granting bail that apart it is important to note that the ground on which a 13 was granted bail is that in the subsequent statement dated 3 june 2020 the overt act which was attributed in the fir was found to be missing 7 2012 9 scc 446 23 having said this the learned judge observed that the order shall not be treated as a precedent to claim bail on the basis of parity in any other case 34 we are left unimpressed with and disapprove of the above observation of the single judge whether parity can be claimed by any other accused on the basis of the order granting bail to a 13 ought not to have been pre judged by the single judge who was dealing only with the application for the grant of bail to a 13 the observation that the grant of bail to a 13 shall not be considered as a precedent for any other person who is accused in the fir on grounds of parity does not constitute judicially appropriate reasoning whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused in the event that parity is claimed in such a case thereafter it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out in other words the observations of the single judge which have been noticed above are inappropriate and erroneous moreover as observed above in para 23 even while considering the ground of parity not only the weapon but individual role attributed to each accused must be considered we have dwelt on this aspect of the matter in order to ensure that the position in law is corrected in terms as explained above as we have noted earlier bail was thereafter granted to pravin a 10 and kheta a 15 by orders dated 21 december 2020 on the ground of parity as claimed with the order dated 22 october 2020 the single judge observed that the additional public prosecutor had not made any point of distinction subsequently parity was the basis on which bail was sought in the case of vanraj a 16 who was granted bail on 19 january 2021 while granting bail the single judge observed that 24 the learned advocates appearing on behalf of the respective parties do not press for further reasoned orders a similar observation is contained in the order dated 20 january 2021 of the single judge granting bail to dinesh a 17 finally on this aspect we would also advert to the order of the high court dated 21 december 2020 granting bail to vishan a 6 which again contains a statement that the advocates appearing on behalf of the respective parties do not press for a further reasoned order 35 we disapprove of the observations of the high court in a succession of orders in the present case recording that the counsel for the parties do not press for a further reasoned order the grant of bail is a matter which implicates the liberty of the accused the interest of the state and the victims of crime in the proper administration of criminal justice it is a well settled principle that in determining as to whether bail should be granted the high court or for that matter the sessions court deciding an application under section 439 of the crpc would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place these observations while adjudicating upon bail would also not be binding on the outcome of the trial but the court granting bail cannot obviate its duty to apply a judicial mind and to record reasons brief as they may be for the purpose of deciding whether or not to grant bail the consent of parties cannot obviate the duty of the high court to indicate its reasons why it has either granted or refused bail this is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other the rights of the victims and their families are at stake as well these are not matters involving the private rights of two individual parties as in a civil proceeding the proper enforcement of criminal law is a matter of public interest we must therefore disapprove of the 25 manner in which a succession of orders in the present batch of cases has recorded that counsel for the respective parties do not press for further reasoned order if this is a euphemism for not recording adequate reasons this kind of a formula cannot shield the order from judicial scrutiny 36 grant of bail under section 439 of the crpc is a matter involving the exercise of judicial discretion judicial discretion in granting or refusing bail as in the case of any other discretion which is vested in a court as a judicial institution is not unstructured the duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner the recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice this court in chaman lal v state of u p 8 in a similar vein has held that an order of a high court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non application of mind this court observed 8 even on a cursory perusal the high court s order shows complete non application of mind though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the court while passing orders on bail applications yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case but exhaustive exploration of the merits of the case is not necessary the court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course 9 there is a need to indicate in the order reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence 8 2004 7 scc 525 26 37 we are also constrained to record our disapproval of the manner in which the application for bail of vishan a 6 was disposed of the high court sought to support its decision to grant bail by stating that it had perused the material on record and was granting bail without discussing the evidence in detail taking into consideration 1 the facts of the case 2 the nature of allegations 3 gravity of offences and 4 role attributed to the accused as a matter of fact there is no discussion or analysis of circumstances at all this lone sentence in the order of the single judge leaves a court before which the order granting bail is challenged completely without guidance on the considerations which weighed with the high court in granting bail we appreciate that in deciding whether or not to grant bail the high court is not at a stage where it adjudicates upon guilt this is to be analyzed during the course of criminal trial where evidence has been recorded but surely the order of the high court must indicate some reasons why the court has either granted or denied bail the sessions judges in the present case have indicated their reasons for the ultimate conclusion this unfortunately has not been observed in the order of the high court dated 21 december 2020 dealing with a similar formulation as in the present case this court has held recently held as follows in sonu v sonu yadav9 11 in the earlier part of this judgment we have extracted the lone sentence in the order of the high court which is intended to display some semblance of reasoning for justifying the grant of bail the sentence which we have extracted earlier contains an omnibus amalgam of i the entire facts and circumstances of the case ii submissions of learned counsel for the parties iii the nature of offence iv evidence and v complicity of accused this is 9 criminal appeal no 377 of 2021 decided on 5 april 2021 27 followed by an observation that the applicant has made out a case for bail without expressing any opinion on the merits of the case this does not constitute the kind of reasoning which is expected of a judicial order the high court cannot be oblivious in a case such as the present of the seriousness of the alleged offence where a woman has met an unnatural end within a year of marriage the seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry and that a telephone call was received from the accused in close proximity to the time of death making a demand there are specific allegations of harassment against the accused on the ground of dowry an order without reasons is fundamentally contrary to the norms truncated reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 422 of 2021 arising out of slp crl no 790 of 2021 ramesh bhavan rathod appellant versus vishanbhai hirabhai makwana makwana koli anr respondents with criminal appeal no 423 of 2021 slp crl no 1245 2021 with criminal appeal no 426 of 2021 slp crl no 1248 2021 with criminal appeal nos 424 425 of 2021 slp crl no 1246 1247 2021 and with criminal appeal no 427 of 2021 slp crl no 1249 2021 1 j u d g m e n t dr dhananjaya y chandrachud j 1 this batch of five appeals arises from orders of the high court of gujarat granting bail under section 439 of the code of criminal procedure 19731 to six persons who have been implicated in five homicidal deaths 2 a first information report fir being cr no 11993005200314 was registered on 9 may 2020 at police station aadesar district east kachchh gandhidham for offences under sections 302 143 144 147 148 149 341 384 120b 506 2 and 34 of the indian penal code sections 25 1 b a 27 and 29 of the arms act and section 135 of the gujarat police act the appellant ramesh bhavan rathod is the informant on whose statement the fir was registered at 1930 hours in respect of an incident which took place at 1300 hours the incident took place in village hamirpur which is at a distance of 20 kms from the police station the incident which led to the commission of five murders had its genesis in a land dispute the informant alleged that he and his brother pethabhai had gone to their farm at 6 00 am at 1 pm the informant pethabhai and his brother in law akhabhai were returning home in a scorpio vehicle with five other persons when the vehicle reached the untarred road passing through the farm of lakha hira koli and kanji bijal koli these two persons came out along with lakha hira koli lakha koli dashed his tractor on the front portion of the scorpio vehicle kanji koli parked his tractor on the rear side of the scorpio behind which another sumo vehicle came to be stationed the scorpio and its occupants were waylaid as the informant 1 crpc 2 and others attempted to run away from the scene he saw the homicidal incident which he describes in the following terms at that time i saw that dhama ghela koli devendrsinh alias lalubha ghelubha vaghela vishan hira koli bharat mamu koli dilip mamu koli ramshi hira koli pravin hira koli bhaghubha hasubha vaghela mohansang umedasng vaghela and vanraj karsan koli and dinesh karsan koli all come with weapons pistol dhariya knife from the thorny fence nearby in which dhama gela koli and devendrasinh alias lalubha gelubha vaghela and visan hira koli and bharat mamu koli had fired rounds from rifles in their hand targeting akhabhai and others at that time akhabhai jeshangbhai umat my brother pethabhai bhavanbhai rathod and amara jeshang umat and lalji akhabhai umat and vela panchabhai umat injured due to firing and laying on land and that time lakha hira koli s wife kanji bijal koli s wife lakhman bijal koli s wife and dhama ghela koli s wife and vishan hira koli s wife also come there their name is i do not know and visan hira kofi talk with akhabhai that why you are cultivating my father and grand father s land that is our land we also said before that this land you do not cultivate so today your life is over this was said by visan hira koli and thereafter dilip mamu koli ramshi hira kofi bhaghubha hasubha vaghela mohansang umedsang vaghela and prabhu ghela koli with dhariya in their hands and in the hands pravin hira koli siddhrajsinh bhaghubha vaghela kheta parbat koli vanraj karsan koli and dinesh karsan kofi with lathi wooden stick and all together assaulted blindly with dhariya lathi over the head and body of akhabhai jeshangbhai umat and my brother pethabhai bhavanbhai rathod and amara jeshang umat and lalji akhabhai umat and vela panchabhai umat and those people when assaulted that time all five are shouting save save but those people are in large gathering so i cannot go near so i cannot save those five those because they will kill me so i ran away from and i go to my village 3 the incident resulted in the death of five persons among the twenty two accused are vishan heera koli a 6 pravin heera koli a 10 sidhdhrajsinh bhagubha vaghela a 13 kheta parbat koli a 15 vanraj karshan koli a 16 and dinesh karshan akhiyani koli a 17 the post mortem was conducted on 10 may 2020 a panchnama is alleged to have been conducted at the scene of offence on the 3 next day i e on 10 may 2020 resulting in the recovery of inter alia two country made guns two indigenous counterfeit guns four dhariyas and one wooden stick 4 on 13 may 2020 a cross fir was registered at the behest of vishan heera makwana koli being fir no 11993005200315 at police station aadesar the informant in the cross fir claims to be an original resident of village hamirpar and is presently residing at village anjar the fir states that after the lockdown had been declared on 25 march 2020 the informant had left anjar to go to village hamirpar about fifteen years ago certain agricultural land had been sold to another person who subsequently gave it for cultivation to akhabhai akhabhai was refusing to give the fields for cultivation to the informant as a result of which a quarrel had taken place on 7 may 2020 the informant s motor cycle had been taken away by the police the issue had been settled at the intervention of persons belonging to the community and no complaint was filed according to the cross fir on 9 may 2020 the informant vishan sent his nephew to the police station together with akhabhai to retrieve the motor cycle the cross fir narrates vishan s version of the incident which took place on 9 may 2020 in the following terms we have decide to kill akhabhai hence i myself along with my brother lakhbhai hira koli dinesh karshan koli and lalubha ghelubha vaghela sat in ritz car and proceeded towards bhimasar at the time i was driving the said car and i tried to dash the said car with akhabhai and tried to kill him but akhabhai ran away nearby and we came to our field wadi there after around 12 0 clock noon akhabhai ring me on my mobile phone and said that why you have tried to dashed by car of lalubha i have given false reply that i am sitting on my field wadi i am not involved akhabhai told me we are coming to you field wadi for quarrel be ready for quarrel at that time i myself along with my brother lakha hira koli ramsi koli pravin dhama gela koli devendrasinh iliyas lalubha vaghela bharat mamu koli dilip mamu koli bhagubha hansubha vaghela and his son monsang umedsang vaghela prabhu gela koli kheta parbar koli vanraj karshan koli dinesh darshan koli were present their i 4 have told this fact to them that jeseng umat along with his men are coming at our wadi for quarreling with us so we all armed with weapons we came near by our field s boundary and we all are become ready for quarrel and sat nearby lakhman bijal s field and that time white color jeep came that at about place near about wadi ramesh bhavan rathod come down for jeep along with dhariya in his hand akhabhai came down with his gun akhabhai abused me i have pride to save at that time ramesh bhavan rathod given blow with dhariya i have tried to save myself and i have lifted up my left hand so dhariya blow caused injury in my left hand i have fallen down on earth and blood coming out for my left hand at the time akhabhai given blow of gun on my brother namely ramsi on his hand at that time akha son lalji amra jeseng umat vela pancha umat petha bhavan rathod akhabhai s younger son dharmendra papu gabha umat came down from jeep and tried to attack on me at that time my brother pravin dhama gela koli devendrasinh iliyas lalubha vaghela bharat mamu koli dilip mamu koli bhagubha hansubha vaghela and his son mohansang umedsang vaghela prabhu gela koli kheta parbat koli vanraj karsan koli dinesh karsan koli came along with the arms at that time akho and his person s tried to ran away with the scorpio jeep my brother namely lakhabhai dashed that jeep by tractor at that time my another cousin brother kanji bijal came with the another tractor and lakhman bijal came with the sumo jeep and dashed with the jeep of akhabhai at that time our ladies came down during quarrel ramesh bhavan rathod papu gabha umat akhabhai son dharmendra ran away at that time the our persons who came there assaulted with the dhariya and lakdi s on akhabhai velabhai pethabhai amrabhai and lalji and this quarrel i have been injured 5 vishan was arrested on 18 may 2020 a further statement of the informant in the original fir dated 9 may 2020 was recorded on 3 june 2020 after investigation the charge sheet was submitted by the investigating officer against vishan and twenty two co accused on 31 august 2020 an application for interim bail moved by vishan on medical grounds was rejected by the sessions judge bhachau kachchh taking note of the fact that the accused had produced fake documents for the purpose of obtaining bail an application seeking regular bail under section 439 of the crpc was rejected by the additional sessions judge bhachau on 4 december 2020 5 6 among the twenty two accused who are named in the charge sheet these proceedings arise out of the applications for bail which were moved before the high court on behalf of the six persons namely vishan heera koli accused no 6 pravin heera koli accused no 10 sidhdhrajsinh bhagubha vaghela accused no 13 kheta parbat koli accused no 15 vanraj karshan koli accused no 16 dinesh karshan akhiyani koli accused no 17 7 the orders passed by the high court granting bail to the above persons are tabulated below sl no name of the accused accused no date of order 1 vishan heera koli 6 21 december 2020 2 pravin heera koli 10 21 december 2020 3 sidhdhrajsinh bhagubha vaghela 13 22 october 2020 4 kheta parbat koli 15 21 december 2020 5 vanraj karshan koli 16 19 january 2021 6 dinesh karshan akhiyani koli 17 20 january 2021 at this stage it is necessary to note that a 10 and a 15 were both granted bail on 21 december 2020 on the basis of parity claimed on the basis of the order dated 22 october 2020 granting bail to a 13 the orders dated 19 january 2021 granting bail to a 16 and to a 17 on 20 january 2021 are also based on parity 6 8 chronologically the first order of the high court granting bail was to sidhdhrajsinh bhagubha vaghela a 13 on 22 october 2020 the high court observed thus 14 having considered the rival submissions and having gone through the materials on record it appears that though the name of the applicant and is shown in the fir for the alleged offences punishable under sections 302 143 144 147 148 149 341 384 120b 506 and 34 of the i p c offence punishable under section 25 1 b a 27 and 29 of the arms act and section 135 of the gujarat police act for the incident which took place on 9th may 2020 on perusal of the charge sheet papers it appears that the complainant in the subsequent statement dated 3rd june 2020 which has been recorded after 25 days from the date of incident the overt tact which was attributed in the fir is missing though the complainant has stated that the applicant was present but no role is attributed in the subsequent statement which was recorded on 3rd june 2020 wherein the details with regard to chronology of events which took place at the place of the incident on 9th may 2020 is in effect substituted by the complainant in the additional statement dated 3rd june 2020 by narrating altogether different details at this juncture this court is not going into the details of the incident as it may affect the trial at the later point of time suffice is to say prima facie appears that the applicant has been involved in alleged offences due to pending proceedings of the previous offences and enmity with the complainant side 9 in addition the single judge observed that i the accused was in jail since 19 may 2020 ii the charge sheet had been filed after investigation and iii the trial was likely to take time as 110 witnesses were to be examined reliance was placed on the decision of this court in sanjay chandra v central bureau of investigation2 the orders granting bail to a 10 and a 15 21 december 2020 to a 16 19 january 2021 and to a 17 20 january 2021 are based on parity 2 2012 1 scc 40 7 10 the main accused vishan a 6 was granted bail on 21 december 2020 the reasons adduced by the single judge of the high court are contained in paragraphs 7 8 and 9 of the order which reads thus 7 having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case nature of allegations gravity of offences role attributed to the accused without discussing the evidence in detail this court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail 8 looking to the overall facts and circumstances of the present case i am inclined to consider the case of the applicant 9 this court has also taken into consideration the law laid down by the hon ble apex court in the case of sanjay chandra vs central bureau of investigation reported in 2012 1 scc 40 11 the allegations against all the accused in the present batch of appeals arise out of the same incident all the appeals have hence been heard together 12 mr vinay navare senior counsel and ms jaikriti s jadeja counsel have appeared in support of the appeals all of which had been filed by the informant mr nikhil goel counsel appeared on behalf of the respondent accused in pursuance of the notice issued on 5 february 2021 mr aniruddha p mayee has entered appearance on behalf of the state of gujarat insofar as the accused are concerned the position before the court as recorded in the order dated 5 april 2021 reads thus slp crl 790 2021 sole accused represented by mr nikhil goel slp crl 1245 2021 sole accused no appearance entered despite service slp crl 1246 47 2021 two accused represented by mr purvish malkan and mr nikhil goel slp crl 1248 2021 sole accused no appearance entered despite service slp crl 1249 2021 sole accused represented by mr j s atri instructed by mr haresh raichura 8 since in two of the special leave petitions namely special leave petition crl nos 1245 and 1248 of 2021 no appearance had been entered on behalf of the accused despite service of notice this court by its order dated 5 april 2021 requested mr nikhil goel to represent them we appreciate the able assistance which has been rendered by mr nikhil goel as an officer of the court who has acted as an amicus curiae for the two unrepresented accused as well 13 mr vinay navare learned senior counsel appearing on behalf of the appellant informant submits that the primary basis on which the first order granting bail was passed by the high court in the case of sidhdhrajsinh bhagubha vaghela a 13 on 22 october 2020 is that while the fir was registered on 9 may 2020 the statement of the informant was recorded on 3 june 2020 in which there have been substantial changes in the genesis of the incident including the nature of the weapons while the allegation in the fir is that vishan a 6 fired several rounds from a rifle together with other persons the subsequent statement would indicate that the injuries had been caused not as a result of the use of firearms but by a sharp weapon the following submissions have been urged i the cross fir lodged by vishan a 6 on 13 may 2020 indicates that an incident had taken place on 9 may 2020 ii during the course of the incident five homicidal deaths resulted on the side of the informant of the fir dated 9 may 2020 iii the cross fir lodged on 13 may 2020 contains a reference to a the accused being armed with weapons b pre meditation on the part of the accused to waylay and assault the side of the informant and 9 c the assault being committed by the accused as the deceased were attempting to flee after their vehicle had been cornered by two tractors belonging to the side of the accused iv the presence of the accused and the role attracted to them has been spelt out not only in the fir but it is evident from the cross fir which was subsequently registered on 13 may 2020 at the behest of vishan a 6 v the cross fir which sets out the version of the accused would indicate that the accused were the aggressors and vi whether the five deaths were caused as a result of firearm injuries as alleged in the fir dated 9 may 2020 or due to dhariyas as alleged in the statement recorded on 3 june 2020 is not relevant at this stage the presence of the accused the pre meditation on their part the assault committed on persons belonging to the side of the informant and the resultant five homicidal deaths which form the genesis of the incident should be sufficient to deny bail 14 on the above premises it has been urged that the high court has committed a grievous error in granting bail in the first instance on 22 october 2020 and in following the earlier order on the basis of parity moreover it has been submitted that the order granting bail to vishan a 6 who is the main accused on 21 december 2020 does not contain any reasons whatsoever it was urged that while granting bail the chief justice has merely observed that the advocates who appeared on behalf of the respective parties do not press for further reasoned order this it was urged is an anathema to criminal jurisprudence the high court while exercising its jurisdiction under section 439 is required to apply its mind objectively and indicate reasons for the grant of bail 10 this duty cannot be obviated it was urged by recording that the counsel for the parties did not press for a further reasoned order 15 the submissions urged by mr vinay navare senior counsel have been supported during the course of her submissions by ms jaikriti s jadeja learned counsel in addition adverted to the following circumstances i the registration of three prior firs against sidhdhrajsinh bhagubha vaghela a 13 ii the observation of the high court while granting bail that the order would not be treated as precedent in any other case on grounds of parity and iii the grant of bail on the basis of parity alone to vanraj karshan koli a 16 kheta parbat koli a 15 pravin heera koli a 10 and dinesh karshan akhiyani koli a 17 16 mr aniruddha p mayee learned counsel appearing on behalf of the state of gujarat has supported the submissions of the appellant in the challenge to the orders granting bail on the following grounds i the grant of bail by the high court to the six accused persons in this batch is not justified having regard to the following circumstances a the main accused vishan a 6 was a resident of anjar and had come to hamirpur b there was an earlier incident which had taken place involving an altercation with the deceased akhabhai c a compromise was arrived at in the course of the dispute with the intervention of the community d as the cross fir by vishan a 6 narrates on 9 may 2020 the conduct of 11 the accused was pre meditated e the incident took place at 1 00 pm when the side of the informant in the fir dated 9 may 2020 was returning from their fields for lunch when they were waylaid and obstructed by vehicles of the accused both at the front and the rear f the side of the accused had collected 22 persons for executing a pre meditated design to assault the group of the informant with deadly weapons g whether or not the rifles had been fired the panchnama notes the recovery of the weapons h both vishan a 6 and sidhdhrajsinh bhagubha vaghela a 13 have criminal antecedents there being earlier firs registered against them i the sessions judge noted that a 6 had even attempted to obtain bail on medical grounds on the basis of a false identity and j the complicity of the accused their intent presence and role are amply supported by the cross fir 17 mr nikhil goel learned counsel appearing on behalf of the accused has on the other hand supported the orders of the high court granting bail on the following submissions i the fir which arises out of the incident of 9 may 2020 implicates as many as 22 persons ii accused 18 22 who are women were granted bail which is not the subject matter of challenge iii eleven accused are still in jail of whom eight persons are alleged to have wielded sharp edged weapons there 12 iv the charge sheet which has been submitted after investigation names 110 witnesses v a charge sheet has been submitted in the cross fir as well vi there was a free fight in the course of the incident on 9 may 2020 resulting in injuries on the side of the accused and five deaths on the side of the informant vii the genesis of the incident as narrated in the fir registered on 9 may 2020 has been substantially altered in the course of the statement of the informant recorded on 3 june 2020 viii the fir made no reference to a free fight between the two groups or to the injuries which were caused to the accused ix the post mortem reports of 10 may 2020 would belie the allegation that the deaths were caused as a result of gunshot injury x an attempt was made to improve upon the allegations in the fir in a subsequent statement of the informant on 3 june 2020 to ensure that the allegations in regard to the weapons used in causing the injuries are made consistent with the post mortem reports which indicate the use of sharp edged weapons xi the allegation in the fir is that five persons on the side of the informant were hit by bullets and were lying on the land which is belied by the post mortem reports not indicating gunshot injuries and xii the nature of the incident is sought to be altered in the statement which was recorded on 3 june 2020 the earlier version which refers to gunshot injuries is replaced with dhariya injuries and by the attempted use of fire arms 13 in summation it has been urged on behalf of the accused that i the presence of the accused at the scene of offence on 9 may 2020 is established by the cross fir ii the post mortem reports would demonstrate that all the injuries were sustained by the deceased with sharp edged weapons and not as a result of fire arms or sticks iii there are three versions of the incident which are contained in the fir the subsequent statement and the cross fir a charge sheet has also been submitted after the investigation of the cross fir iv as many as twenty two persons have been roped in v while the sessions judge had noticed the improvement which was made in the subsequent statement bail was denied only on the basis of the presence of the accused and vi in the event that this court holds that adequate reasons have not been adduced in the order dated 21 december 2020 granting bail to a 6 an order of remand may be warranted 18 the submissions of mr nikhil goel have been buttressed by mr j s atri senior counsel by placing reliance on the decision in sanjay chandra v central bureau of investigation3 learned senior counsel specifically highlighted that the subsequent statement dated 3 june 2020 has materially altered the genesis as well as the details of the incident similar submissions have been urged by mr purvish jitendra malkan learned counsel appearing on behalf of some of the accused by submitting that i this is a case involving an over implication 3 2012 1 scc 40 14 ii the absence of blood marks on the clothes of kheta parbat koli a 15 and on the stick is a pointer to his innocence and iii it was the complainant s side which had committed the initial act of aggression 19 the rival submissions now fall for analysis 20 the first aspect of the case which stares in the face is the singular absence in the judgment of the high court to the nature and gravity of the crime the incident which took place on 9 may 2020 resulted in five homicidal deaths the nature of the offence is a circumstance which has an important bearing on the grant of bail the orders of the high court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence the perversity lies in the failure of the high court to consider an important circumstance which has a bearing on whether bail should be granted in the two judge bench decision of this court in ram govind upadhyay v sudharshan singh4 the nature of the crime was recorded as one of the basic considerations which has a bearing on the grant or denial of bail the considerations which govern the grant of bail were elucidated in the judgment of this court without attaching an exhaustive nature or character to them this emerges from the following extract 4 apart from the above certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however the same are only illustrative and not exhaustive neither there can be any the considerations being a while granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations 4 2002 3 scc 598 15 b reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail c while it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge d frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of bail this court further laid down the standard for overturning an order granting bail in the following terms 3 grant of bail though being a discretionary order but however calls for exercise of such a discretion in a judicious manner and not as a matter of course order for bail bereft of any cogent reason cannot be sustained 21 the principles governing the grant of bail were reiterated by a two judge bench in prasanta kumar sarkar v ashis chatterjee5 9 it is trite that this court does not normally interfere with an order passed by the high court granting or rejecting bail to the accused however it is equally incumbent upon the high court to exercise its discretion judiciously cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this court on the point it is well settled that among other circumstances the factors to be borne in mind while considering an application for bail are i whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ii nature and gravity of the accusation iii severity of the punishment in the event of conviction iv danger of the accused absconding or fleeing if released on bail v character behaviour means position and standing of the accused vi likelihood of the offence being repeated 5 2010 14 scc 496 16 vii reasonable apprehension of the witnesses being influenced and viii danger of course of justice being thwarted by grant of bail internal citation omitted explicating the power of this court to set aside an order granting bail this court held 10 it is manifest that if the high court does not advert to these relevant considerations and mechanically grants bail the said order would suffer from the vice of non application of mind rendering it to be illegal 22 we are constrained to observe that the orders passed by the high court granting bail fail to pass muster under the law they are oblivious to and innocent of the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction in neeru yadav v state of u p 6 this court has held that while applying the principle of parity the high court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail this court observed 17 coming to the case at hand it is found that when a stand was taken that the 2nd respondent was a history sheeter it was imperative on the part of the high court to scrutinize every aspect and not capriciously record that the 2nd respondent is entitled to be admitted to bail on the ground of parity it can be stated with absolute certitude that it was not a case of parity and therefore the impugned order clearly exposes the non application of mind that apart as a matter of fact it has been brought on record that the 2nd respondent has been charge sheeted in respect of number of other heinous offences the high court has failed to take note of the same therefore the order has to pave the path of extinction for its approval by this court would tantamount to travesty of justice and accordingly we set it aside 6 2014 16 scc 508 17 23 another aspect of the case which needs emphasis is the manner in which the high court has applied the principle of parity by its two orders both dated 21 december 2020 the high court granted bail to pravin koli a 10 and kheta parbat koli a 15 parity was sought with sidhdhrajsinh bhagubha vaghela a 13 to whom bail was granted on 22 october 2020 on the ground as the high court recorded that he was assigned similar role of armed with stick sic again bail was granted to vanraj koli a 16 on the ground that he was armed with a wooden stick and on the ground that pravin a 10 kheta a 15 and sidhdhrajsinh a 13 who were armed with sticks had been granted bail the high court has evidently misunderstood the central aspect of what is meant by parity parity while granting bail must focus upon role of the accused merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established in deciding the aspect of parity the role attached to the accused their position in relation to the incident and to the victims is of utmost importance the high court has proceeded on the basis of parity on a simplistic assessment as noted above which again cannot pass muster under the law 24 the narration of facts in the earlier part of this judgement would indicate that on 22 october 2020 a single judge of the high court granted bail to sidhdhrajsinh a 13 the single judge noted that the name of a 13 is shown in the fir for the incident which took place on 9 may 2020 the circumstance which weighed with the single judge was that the informant in the subsequent statement which was recorded twenty five days after the fir on 3 june 2020 does not advert to overt act which was attributed in the fir though the presence of a 13 is shown no specific role is attributed to him in the subsequent statement observing that the details in regard to the chronology of events which took place on 9 may 2020 is in effect substituted in the 18 subsequent statement dated 3 june 2020 the high court held that it appears that a 13 was roped in due to the pendency of previous proceedings and enmity with the side of the informant holding that this was sufficient to grant bail the learned judge observed 15 learned advocates appearing on behalf of the respective parties do not press for further reasoned order emphasis supplied 25 the order which was passed on 22 october 2020 in the case of a 13 was relied upon on grounds of parity in the case of pravin a 10 and kheta a 15 by orders of a single judge of the high court dated 21 december 2020 in the case of vishan a 6 bail was granted on 21 december 2020 by the single judge who had passed orders dated 22 october 2020 in the case of a 10 and a 15 the only reasons which have been indicated in the order of the single judge is that bail was being granted taking into consideration the facts of the case the nature of the allegations gravity of offences and role attributed to the accused thereafter by an order dated 19 january 2021 bail was granted to vanraj a 16 purely on the basis of parity on 20 january 2021 the order granting bail to vanraj a 16 was followed in the case of dinesh a 17 on the ground of parity 26 from the above conspectus of facts it is evident that essentially the only order which contains a semblance of reasoning is the order dated 22 october 2020 granting bail to a 13 as a matter of fact the submissions which have been made on behalf of the accused substantially dwell on the same line of logic in justifying the grant of bail on the ground that in the subsequent statement dated 3 june 2020 of the informant the genesis and details of the incident which took place on 9 may 2020 as elaborated in the fir have undergone a substantial change 19 27 in granting bail to the six accused the high court has committed a serious mistake by failing to recognize material aspects of the case rendering the orders of the high court vulnerable to assail on the ground of perversity the first circumstance which should have weighed with the high court but which has been glossed over is the seriousness and gravity of the offences the fir which has been lodged on 9 may 2020 adverts to the murder of five persons on the side of the informant in the course of the incident as a result of which offences punishable under sections 302 143 144 147 148 149 341 384 120b 506 2 read with section 34 of the indian penal code were alleged this is apart from the invocation of the provisions of sections 25 1 b a 27 and 29 of the arms act and section 135 of the gujarat police act the fir which was lodged on 9 may 2020 notes that the incident took place at 1 00 pm a group of persons from the side of the informant including the deceased were returning home at about 1 00 pm the genesis of the incident is that the path of their vehicle was blocked both from the front and the rear by tractors of the accused the fir specifically refers to the presence of the accused vishan a 6 sidhdhrajsinh bhagubha vaghela a 13 vanraj karshan koli a 16 kheta parbat koli a 15 pravin heera koli a 10 and dinesh karshan akhiyani koli a 17 it states that the accused had all come to the scene of offence with pistols dhariyas and knives and that initially vishan a 6 and two others had fired from their rifles as a result of which five persons fell to the ground some of these accused vishan a 6 sidhdhrajsinh a 13 vanraj a 16 kheta a 15 pravin a 10 and dinesh a 17 are alleged to have assaulted with dhariyas and lathis over the head and body of akhabhai pethabhai amara lalji and vela all of them were rushed to the government hospital where they were pronounced dead 20 28 four days after the fir was lodged by the informant on 9 may 2020 a cross fir was lodged by vishan a 6 this fir contains a narration of the pre existing dispute over land and to an incident which had taken place on 7 may 2020 which was resolved with the intervention of the community the cross fir dated 13 may 2020 stated that vishan a 6 sent his nephew together with akhabhai to the police station to retrieve his motorcycle the cross fir specifically states that the side of the accused had decided to kill akhabhai and in pursuance of this design he proceeded in his vehicle together with his brother and some of the other accused and tried to kill akhabhai by dashing his car against him the translation of the actual intent in the cross fir is questioned by mr nikhil goel by submitting that correctly translated from gujarati the intent would be to assault and not to kill be that as it may the cross fir indicates the presence of all these accused and of their being armed with weapons to assault the deceased a 6 in fact states that in the course of the incident which took place he was assaulted on his hand with a dhariya the cross fir contains a narration of how akhabhai and the others tried to run away from the scene but were way laid and assaulted the cross fir also then states that several women from the side of the accused came to the scene of occurrence 29 a reading of the cross fir which was lodged by vishanbhai a 6 on 13 may 2020 indicates i an intent on the part of the accused to launch an assault on the deceased ii the manner in which their pre meditated design was sought to be achieved by assaulting akhabhai and the other deceased persons iii an effort was made by akhabhai and the other deceased to run away but this was prevented in the course of the assault and iv the accused had come armed with weapons to execute their intent 21 30 in other words with the contents of the cross fir as they stand it was impossible for any judicial mind while adjudicating upon the applications for the grant of bail to gloss over i the presence of the accused at the scene of occurrence on 9 may 2020 ii the accused being armed with weapons to accost akhabhai and the other persons accompanying him iii the intent to assault them and iv the actual incident in the course of which akhabhai and four other persons of his group were waylaid and assaulted resulting in five homicidal deaths 31 the post mortem reports which have been produced on the record indicate the extensive nature of the bodily injuries which were sustained by each of the five deceased persons it is true that in the fir dated 9 may 2020 it was alleged that the deceased were fired upon as a result of which they fell to the ground whereas in the statement dated 3 june 2020 it has been stated that the injuries were sustained as a result of dhariyas and sticks whether the deaths occurred as a result of bullet wounds or otherwise can make no difference on whether a case for the grant of bail was made out once a plain reading of the cross fir indicates both the presence of the accused and the execution of their plan to assault the side of the informant with the weapons which were in the possession of the accused the high court in its first order dated 22 october 2020 was persuaded to grant bail on the specious ground that the details of the incident as they appeared in the subsequent statement of the informant dated 3 june 2020 are at variance with the fir dated 9 may 2020 these are matters of trial the high court has however clearly overlooked the cross fir dated 13 may 2020 lodged by a 6 and the implications of the content of the fir on the basic issue as to whether 22 bail should be granted as a matter of fact it is also important to note that the presence of women on the side of the accused is a fact which is noted in the cross fir itself bail having been granted to a 18 to a 22 has not been the subject matter of the challenge in these proceedings hence it is not necessary to dwell on that aspect any further it is important for the purpose of evaluating this batch of cases at the present stage to also note the invocation of the provisions of the section 149 of the indian penal code 32 our analysis above would therefore lead to the conclusion that there has been a manifest failure of the high court to advert to material circumstances especially the narration of the incident as it appears in the cross fir which was lodged on 13 may 2020 above all the high court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths this is clearly a case where the orders passed by the high court suffered from a clear perversity 33 there is another aspect of this batch of cases which it is necessary to note in the order of the high court dated 22 october 2020 granting bail to sidhdhrajsinh a 13 there was a reference to the submission of the public prosecutor to the criminal antecedents of a 13 bearing on previous firs registered against him in 2017 and 2019 this aspect bearing on the criminal antecedents of a 13 has not been considered in the reasons which have been adduced by the single judge in ash mohammad v shiv raj singh7 this court has held that criminal antecedents of the accused must be weighed for the purpose of granting bail that apart it is important to note that the ground on which a 13 was granted bail is that in the subsequent statement dated 3 june 2020 the overt act which was attributed in the fir was found to be missing 7 2012 9 scc 446 23 having said this the learned judge observed that the order shall not be treated as a precedent to claim bail on the basis of parity in any other case 34 we are left unimpressed with and disapprove of the above observation of the single judge whether parity can be claimed by any other accused on the basis of the order granting bail to a 13 ought not to have been pre judged by the single judge who was dealing only with the application for the grant of bail to a 13 the observation that the grant of bail to a 13 shall not be considered as a precedent for any other person who is accused in the fir on grounds of parity does not constitute judicially appropriate reasoning whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused in the event that parity is claimed in such a case thereafter it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out in other words the observations of the single judge which have been noticed above are inappropriate and erroneous moreover as observed above in para 23 even while considering the ground of parity not only the weapon but individual role attributed to each accused must be considered we have dwelt on this aspect of the matter in order to ensure that the position in law is corrected in terms as explained above as we have noted earlier bail was thereafter granted to pravin a 10 and kheta a 15 by orders dated 21 december 2020 on the ground of parity as claimed with the order dated 22 october 2020 the single judge observed that the additional public prosecutor had not made any point of distinction subsequently parity was the basis on which bail was sought in the case of vanraj a 16 who was granted bail on 19 january 2021 while granting bail the single judge observed that 24 the learned advocates appearing on behalf of the respective parties do not press for further reasoned orders a similar observation is contained in the order dated 20 january 2021 of the single judge granting bail to dinesh a 17 finally on this aspect we would also advert to the order of the high court dated 21 december 2020 granting bail to vishan a 6 which again contains a statement that the advocates appearing on behalf of the respective parties do not press for a further reasoned order 35 we disapprove of the observations of the high court in a succession of orders in the present case recording that the counsel for the parties do not press for a further reasoned order the grant of bail is a matter which implicates the liberty of the accused the interest of the state and the victims of crime in the proper administration of criminal justice it is a well settled principle that in determining as to whether bail should be granted the high court or for that matter the sessions court deciding an application under section 439 of the crpc would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place these observations while adjudicating upon bail would also not be binding on the outcome of the trial but the court granting bail cannot obviate its duty to apply a judicial mind and to record reasons brief as they may be for the purpose of deciding whether or not to grant bail the consent of parties cannot obviate the duty of the high court to indicate its reasons why it has either granted or refused bail this is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other the rights of the victims and their families are at stake as well these are not matters involving the private rights of two individual parties as in a civil proceeding the proper enforcement of criminal law is a matter of public interest we must therefore disapprove of the 25 manner in which a succession of orders in the present batch of cases has recorded that counsel for the respective parties do not press for further reasoned order if this is a euphemism for not recording adequate reasons this kind of a formula cannot shield the order from judicial scrutiny 36 grant of bail under section 439 of the crpc is a matter involving the exercise of judicial discretion judicial discretion in granting or refusing bail as in the case of any other discretion which is vested in a court as a judicial institution is not unstructured the duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner the recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice this court in chaman lal v state of u p 8 in a similar vein has held that an order of a high court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non application of mind this court observed 8 even on a cursory perusal the high court s order shows complete non application of mind though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the court while passing orders on bail applications yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case but exhaustive exploration of the merits of the case is not necessary the court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course 9 there is a need to indicate in the order reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence 8 2004 7 scc 525 26 37 we are also constrained to record our disapproval of the manner in which the application for bail of vishan a 6 was disposed of the high court sought to support its decision to grant bail by stating that it had perused the material on record and was granting bail without discussing the evidence in detail taking into consideration 1 the facts of the case 2 the nature of allegations 3 gravity of offences and 4 role attributed to the accused as a matter of fact there is no discussion or analysis of circumstances at all this lone sentence in the order of the single judge leaves a court before which the order granting bail is challenged completely without guidance on the considerations which weighed with the high court in granting bail we appreciate that in deciding whether or not to grant bail the high court is not at a stage where it adjudicates upon guilt this is to be analyzed during the course of criminal trial where evidence has been recorded but surely the order of the high court must indicate some reasons why the court has either granted or denied bail the sessions judges in the present case have indicated their reasons for the ultimate conclusion this unfortunately has not been observed in the order of the high court dated 21 december 2020 dealing with a similar formulation as in the present case this court has held recently held as follows in sonu v sonu yadav9 11 in the earlier part of this judgment we have extracted the lone sentence in the order of the high court which is intended to display some semblance of reasoning for justifying the grant of bail the sentence which we have extracted earlier contains an omnibus amalgam of i the entire facts and circumstances of the case ii submissions of learned counsel for the parties iii the nature of offence iv evidence and v complicity of accused this is 9 criminal appeal no 377 of 2021 decided on 5 april 2021 27 followed by an observation that the applicant has made out a case for bail without expressing any opinion on the merits of the case this does not constitute the kind of reasoning which is expected of a judicial order the high court cannot be oblivious in a case such as the present of the seriousness of the alleged offence where a woman has met an unnatural end within a year of marriage the seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry and that a telephone call was received from the accused in close proximity to the time of death making a demand there are specific allegations of harassment against the accused on the ground of dowry an order without reasons is fundamentally contrary to the norms truncated 416 2019_c a no 000495 000495 2021 shekhar learned senior counsel 2000 09 30 non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 495 of 2021 arising out of slp c no 2288 of 2019 vinod prasad raturi ors appellant s versus union of india ors respondent s j u d g m e n t l nageswara rao j 1 in this appeal the correctness of the order of the high court directing the respondents in writ petition to conduct a review departmental promotion committee dpc for considering allotment of the 4th respondent to earlier batch 2 the state of uttar pradesh was reorganized under the uttar pradesh reorganization act 2000 hereinafter referred to as the act the state of uttarakhand was created pursuant to the said act the central government issued guidelines on 30 09 2000 for allocation of erstwhile employees of the state of uttar pradesh amongst the two states a tentative final allocation list was prepared and 1 pa ge circulated to the employees calling for their objections if they were aggrieved by the proposed final allocation a state advisory committee was constituted by the central government the state advisory committee prepared a list of state civil service scs officers on the basis of their seniority for allocation to the state of uttarakhand though some of the officers joined the services in the state of uttarakhand there were others who objected to their allotment writ petitions were filed in the high court of judicature at allahabad questioning the allotment to the state of uttarakhand appellant no 2 was also a party to the writ petition the high court stayed the orders of allocation during the pendency of the writ petitions 3 after considering the objections received from the aggrieved parties the central government issued the final allocation list on 22 04 2003 in accordance with section 73 of the act by a judgment dated 11 12 2003 the high court dismissed the writ petition filed by appellant no 2 and others challenging the allocation to the state of uttarakhand aggrieved by the judgment of the high court appellant no 2 and other scs officers including respondent no 4 filed special leave petitions slps in this court by an order 2 pa ge dated 07 01 2004 this court directed the authorities to maintain the status quo 4 the state of uttarakhand communicated to the government of india by a letter dated 09 01 2011 that 9 vacancies in the indian administrative services ias cadre for the select list for the year 2010 were available 2 additional vacancies had arisen in the year 2009 in all there were 11 vacancies in the ias cadre in 2011 appellant no 2 withdrew slp c no 24078 of 2003 thereafter a final allotment order was passed by the government of india pursuant to which the appellant no 2 joined the state of uttarakhand on 15 04 2011 5 the appellants were included in the select list for 2011 and they were promoted to ias in the vacancies determined in accordance with regulation 5 1 of the ias appointment by promotion regulations 1955 6 slps filed by respondent no 4 and others against the judgment of the high court were dismissed on 12 02 2015 thereafter respondent no 4 filed a review petition which was also dismissed by this court on 09 06 2015 the government of india allocated respondent no 4 and other pcs officers to the state of uttarakhand the request made by the government of uttar pradesh for retention of 3 pa ge respondent no 4 in the state of uttar pradesh was rejected by the central government by order dated 25 06 2015 the government of india on 02 09 2015 reiterated its direction of allocation of respondent no 4 and others to the state of uttarakhand respondent no 4 was relieved on 28 09 2016 from uttar pradesh and thereafter he joined the services of the state of uttarakhand on 01 10 2016 a seniority list of state civil services officers executive branch was prepared on 20 02 2017 respondent no 4 submitted his objections to the tentative seniority list wherein he requested for the period of service rendered by him in short service commission of the indian army and as deputy superintendent of police to be counted for the purpose of calculating the total qualifying services a final seniority list of scs officers executive branch was issued on 17 03 2017 respondent no 4 made a representation on 23 11 2017 requesting to induct him in the ias cadre with seniority being restored as per the seniority in the feeder cadre of pcs respondent no 4 was promoted to ias on 09 01 2018 and allocated the year of allotment as 2010 as his juniors were given the year of allotment from 2005 onwards respondent no 4 requested for revision of his seniority in the ias cadre he requested for a review dpc to be held in view of the 4 pa ge allocation of his juniors in earlier batches as there was no response to his representation respondent no 4 filed a writ petition seeking direction to the respondents therein to conduct review dpc and to consider his case for allotment in the all india services as per his seniority in scs executive branch on 20 06 2018 the high court disposed of the writ petition with direction to the respondents to hold a review dpc within a period of six months 7 we have heard mr v shekhar learned senior counsel appearing on behalf of the appellants and mr rupinder singh suri learned additional solicitor general appearing on behalf of the union of india and mr v k shukla learned senior advocate for respondent no 4 the appellants contended that the high court committed an error in directing the review dpc to be conducted without hearing them the appellants were not even made parties in the writ petition it is well settled law that persons who are likely to be affected have to be heard before any order likely to affect them is passed according to the appellants respondent no 4 continued to serve in the state of uttar pradesh by virtue of an interim order passed by this court till the year 2016 respondent no 4 did not make any request for consideration of his case for induction to ias cadre from the state of 5 pa ge uttarakhand moreover respondent no 4 did not protest when the appellants were being inducted in the ias cadre as respondent no 4 was not in the state of uttarakhand when the appellants were being promoted to ias cadre he cannot raise any grievance at this stage it was further submitted on behalf of the appellants that respondent no 4 was considered for promotion to ias cadre while he was working in the state of uttar pradesh respondent no 4 contended that the order passed by the high court which is innocuous in nature should not be interfered with by this court in exercise of its jurisdiction under article 136 of the constitution of india it was submitted on his behalf that his allotment to the state of uttarakhand is with effect from 09 11 2000 and he is entitled to get all the benefits including his seniority admittedly juniors to respondent no 4 were promoted earlier than him the request made by respondent no 4 to review his seniority in the scs officers is legitimate it was pointed out on behalf of respondent no 4 that the union of india also supports his plea that a review dpc has to be conducted it was pointed out on behalf of the union of india that the final allocation of scs officers was delayed due to pendency of the slps in this court after dismissal of the slps final allocation was made on the 6 pa ge basis of the order passed by the high court in the writ petition filed by respondent no 4 a decision was taken by the central government to hold a review dpc which could not be completed in view of certain objections taken by the state of uttarakhand 8 the dispute that arises for consideration of this court is regarding the reconsideration of respondent no 4 for inclusion in an earlier select list for promotion to ias in state of uttarakhand as stated above respondent no 4 was finally allocated to the state of uttarakhand only in the year 2016 after the dismissal of the slps filed by them respondent no 4 requested for reviewing his allotment to his inclusion in the select list prepared for earlier years by restoring his seniority in the scs officers cadre this request was made due to the promotion of his juniors in the scs officers cadre to ias by being included in the select list of earlier years 9 respondent no 4 continued to work in the state of uttar pradesh by virtue of interim orders passed initially by the high court of judicature at allahabad and later by this court he did not make any attempt to have his case considered for promotion to ias when his juniors in the scs officers cadre were being promoted to ias from the state of uttarakhand 7 pa ge he could have made a request for consideration of his case without prejudice to the ongoing litigation in this court admittedly he did not lodge any protest or prefer any objection at the time of promotion of the appellants to ias even after the slp filed by him was dismissed an attempt was made for his retention in the state of uttar pradesh as the union of india did not accept the request made by the state of uttar pradesh to retain respondent no 4 in uttar pradesh having no other alternative he joined the state of uttarakhand no fault can be found with respondent no 4 for pursuing his legal remedies however he cannot now seek to disturb settled matters especially those relating to seniority of others during the period in which he was serving in the state of uttar pradesh in other words the inclusion of the appellants in the select list of ias cannot be reviewed at the behest of respondent no 4 at this stage no doubt the allocation of respondent no 4 dates back to 09 11 2000 however respondent no 4 cannot be permitted to seek review of the promotions made while he was serving the state of uttar pradesh the promotion of the appellants cannot be disturbed by the 4th respondent who continued to work in uttar pradesh of his volition the high court committed an error in directing a review dpc to be 8 pa ge conducted without hearing the affected parties and without realising that there was a likelihood of seniority of other officers being disturbed 10 for the aforementioned reasons the judgement of the high court is set aside and the appeal is allowed j l nageswara rao j s ravindra bhat new delhi march 05 2021 9 pa ge non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 495 of 2021 arising out of slp c no 2288 of 2019 vinod prasad raturi ors appellant s versus union of india ors respondent s j u d g m e n t l nageswara rao j 1 in this appeal the correctness of the order of the high court directing the respondents in writ petition to conduct a review departmental promotion committee dpc for considering allotment of the 4th respondent to earlier batch 2 the state of uttar pradesh was reorganized under the uttar pradesh reorganization act 2000 hereinafter referred to as the act the state of uttarakhand was created pursuant to the said act the central government issued guidelines on 30 09 2000 for allocation of erstwhile employees of the state of uttar pradesh amongst the two states a tentative final allocation list was prepared and 1 pa ge circulated to the employees calling for their objections if they were aggrieved by the proposed final allocation a state advisory committee was constituted by the central government the state advisory committee prepared a list of state civil service scs officers on the basis of their seniority for allocation to the state of uttarakhand though some of the officers joined the services in the state of uttarakhand there were others who objected to their allotment writ petitions were filed in the high court of judicature at allahabad questioning the allotment to the state of uttarakhand appellant no 2 was also a party to the writ petition the high court stayed the orders of allocation during the pendency of the writ petitions 3 after considering the objections received from the aggrieved parties the central government issued the final allocation list on 22 04 2003 in accordance with section 73 of the act by a judgment dated 11 12 2003 the high court dismissed the writ petition filed by appellant no 2 and others challenging the allocation to the state of uttarakhand aggrieved by the judgment of the high court appellant no 2 and other scs officers including respondent no 4 filed special leave petitions slps in this court by an order 2 pa ge dated 07 01 2004 this court directed the authorities to maintain the status quo 4 the state of uttarakhand communicated to the government of india by a letter dated 09 01 2011 that 9 vacancies in the indian administrative services ias cadre for the select list for the year 2010 were available 2 additional vacancies had arisen in the year 2009 in all there were 11 vacancies in the ias cadre in 2011 appellant no 2 withdrew slp c no 24078 of 2003 thereafter a final allotment order was passed by the government of india pursuant to which the appellant no 2 joined the state of uttarakhand on 15 04 2011 5 the appellants were included in the select list for 2011 and they were promoted to ias in the vacancies determined in accordance with regulation 5 1 of the ias appointment by promotion regulations 1955 6 slps filed by respondent no 4 and others against the judgment of the high court were dismissed on 12 02 2015 thereafter respondent no 4 filed a review petition which was also dismissed by this court on 09 06 2015 the government of india allocated respondent no 4 and other pcs officers to the state of uttarakhand the request made by the government of uttar pradesh for retention of 3 pa ge respondent no 4 in the state of uttar pradesh was rejected by the central government by order dated 25 06 2015 the government of india on 02 09 2015 reiterated its direction of allocation of respondent no 4 and others to the state of uttarakhand respondent no 4 was relieved on 28 09 2016 from uttar pradesh and thereafter he joined the services of the state of uttarakhand on 01 10 2016 a seniority list of state civil services officers executive branch was prepared on 20 02 2017 respondent no 4 submitted his objections to the tentative seniority list wherein he requested for the period of service rendered by him in short service commission of the indian army and as deputy superintendent of police to be counted for the purpose of calculating the total qualifying services a final seniority list of scs officers executive branch was issued on 17 03 2017 respondent no 4 made a representation on 23 11 2017 requesting to induct him in the ias cadre with seniority being restored as per the seniority in the feeder cadre of pcs respondent no 4 was promoted to ias on 09 01 2018 and allocated the year of allotment as 2010 as his juniors were given the year of allotment from 2005 onwards respondent no 4 requested for revision of his seniority in the ias cadre he requested for a review dpc to be held in view of the 4 pa ge allocation of his juniors in earlier batches as there was no response to his representation respondent no 4 filed a writ petition seeking direction to the respondents therein to conduct review dpc and to consider his case for allotment in the all india services as per his seniority in scs executive branch on 20 06 2018 the high court disposed of the writ petition with direction to the respondents to hold a review dpc within a period of six months 7 we have heard mr v shekhar learned senior counsel appearing on behalf of the appellants and mr rupinder singh suri learned additional solicitor general appearing on behalf of the union of india and mr v k shukla learned senior advocate for respondent no 4 the appellants contended that the high court committed an error in directing the review dpc to be conducted without hearing them the appellants were not even made parties in the writ petition it is well settled law that persons who are likely to be affected have to be heard before any order likely to affect them is passed according to the appellants respondent no 4 continued to serve in the state of uttar pradesh by virtue of an interim order passed by this court till the year 2016 respondent no 4 did not make any request for consideration of his case for induction to ias cadre from the state of 5 pa ge uttarakhand moreover respondent no 4 did not protest when the appellants were being inducted in the ias cadre as respondent no 4 was not in the state of uttarakhand when the appellants were being promoted to ias cadre he cannot raise any grievance at this stage it was further submitted on behalf of the appellants that respondent no 4 was considered for promotion to ias cadre while he was working in the state of uttar pradesh respondent no 4 contended that the order passed by the high court which is innocuous in nature should not be interfered with by this court in exercise of its jurisdiction under article 136 of the constitution of india it was submitted on his behalf that his allotment to the state of uttarakhand is with effect from 09 11 2000 and he is entitled to get all the benefits including his seniority admittedly juniors to respondent no 4 were promoted earlier than him the request made by respondent no 4 to review his seniority in the scs officers is legitimate it was pointed out on behalf of respondent no 4 that the union of india also supports his plea that a review dpc has to be conducted it was pointed out on behalf of the union of india that the final allocation of scs officers was delayed due to pendency of the slps in this court after dismissal of the slps final allocation was made on the 6 pa ge basis of the order passed by the high court in the writ petition filed by respondent no 4 a decision was taken by the central government to hold a review dpc which could not be completed in view of certain objections taken by the state of uttarakhand 8 the dispute that arises for consideration of this court is regarding the reconsideration of respondent no 4 for inclusion in an earlier select list for promotion to ias in state of uttarakhand as stated above respondent no 4 was finally allocated to the state of uttarakhand only in the year 2016 after the dismissal of the slps filed by them respondent no 4 requested for reviewing his allotment to his inclusion in the select list prepared for earlier years by restoring his seniority in the scs officers cadre this request was made due to the promotion of his juniors in the scs officers cadre to ias by being included in the select list of earlier years 9 respondent no 4 continued to work in the state of uttar pradesh by virtue of interim orders passed initially by the high court of judicature at allahabad and later by this court he did not make any attempt to have his case considered for promotion to ias when his juniors in the scs officers cadre were being promoted to ias from the state of uttarakhand 7 pa ge he could have made a request for consideration of his case without prejudice to the ongoing litigation in this court admittedly he did not lodge any protest or prefer any objection at the time of promotion of the appellants to ias even after the slp filed by him was dismissed an attempt was made for his retention in the state of uttar pradesh as the union of india did not accept the request made by the state of uttar pradesh to retain respondent no 4 in uttar pradesh having no other alternative he joined the state of uttarakhand no fault can be found with respondent no 4 for pursuing his legal remedies however he cannot now seek to disturb settled matters especially those relating to seniority of others during the period in which he was serving in the state of uttar pradesh in other words the inclusion of the appellants in the select list of ias cannot be reviewed at the behest of respondent no 4 at this stage no doubt the allocation of respondent no 4 dates back to 09 11 2000 however respondent no 4 cannot be permitted to seek review of the promotions made while he was serving the state of uttar pradesh the promotion of the appellants cannot be disturbed by the 4th respondent who continued to work in uttar pradesh of his volition the high court committed an error in directing a review dpc to be 8 pa ge conducted without hearing the affected parties and without realising that there was a likelihood of seniority of other officers being disturbed 10 for the aforementioned reasons the judgement of the high court is set aside and the appeal is allowed j l nageswara rao j s ravindra bhat new delhi march 05 2021 9 pa ge 429 2020_c a no 000337 000337 2021 u p awas evam vikas parishad sections 4 and 6 jawahar lal ors 4 filed by the parishad in 2015 07 21 4445 of 2020 5184 of 2020 4447 of 2020 4444 of 2020 5185 of 2020 5188 of 2020 4685 of 2020 4680 of 2020 5244 of 2020 5190 of 2020 5242 of 2020 4446 of 2020 4686 of 2020 5245 of 2020 4687 of 2020 4688 of 2020 4690 of 2020 5246 of 2020 4448 of 2020 5191 of 2020 4691 of 2020 4692 of 2020 5247 of 2020 4695 of 2020 5192 of 2020 4693 of 2020 5193 of 2020 4684 of 2020 4679 of 2020 5194 of 2020 4696 of 2020 5195 of 2020 4694 of 2020 5197 of 2020 4681 of 2020 5198 of 2020 5230 of 2020 5231 of 2020 5232 of 2020 5233 of 2020 4682 of 2020 5248 of 2020 4683 of 2020 5236 of 2020 5237 of 2020 5238 of 2020 5249 of 2020 4698 of 2020 5239 of 2020 5240 of 2020 5241 of 2020 parishad v jawahar parishad v jawahar anr v u p anr v u p anr v u p kumar v state ors v state ors v collector corpn v narottambhai officer v b lrs v state limited v rameshbhai ors v state contractor v state officer v shaik raofuddin v land ors v state prakash v state dayal v state anr v state kareem v state ors v new 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 337 of 2021 arising out of slp civil no 4445 of 2020 u p awas evam vikash parishad appellant s versus asha ram d thr lrs ors respondent s with civil appeal no 360 of 2021 arising out of slp civil no 5184 of 2020 civil appeal no 340 of 2021 arising out of slp civil no 4447 of 2020 civil appeal no 338 of 2021 arising out of slp civil no 4444 of 2020 civil appeal no 361 of 2021 arising out of slp civil no 5185 of 2020 civil appeal no 362 of 2021 arising out of slp civil no 5188 of 2020 2 civil appeal no 348 of 2021 arising out of slp civil no 4685 of 2020 civil appeal no 343 of 2021 arising out of slp civil no 4680 of 2020 civil appeal no 382 of 2021 arising out of slp civil no 5244 of 2020 civil appeal no 363 of 2021 arising out of slp civil no 5190 of 2020 civil appeal no 381 of 2021 arising out of slp civil no 5242 of 2020 civil appeal no 339 of 2021 arising out of slp civil no 4446 of 2020 civil appeal no 349 of 2021 arising out of slp civil no 4686 of 2020 civil appeal no 383 of 2021 arising out of slp civil no 5245 of 2020 civil appeal no 350 of 2021 arising out of slp civil no 4687 of 2020 civil appeal no 351 of 2021 arising out of slp civil no 4688 of 2020 civil appeal no 352 of 2021 arising out of slp civil no 4690 of 2020 civil appeal no 384 of 2021 3 arising out of slp civil no 5246 of 2020 civil appeal no 341 of 2021 arising out of slp civil no 4448 of 2020 civil appeal no 364 of 2021 arising out of slp civil no 5191 of 2020 civil appeal no 353 of 2021 arising out of slp civil no 4691 of 2020 civil appeal no 354 of 2021 arising out of slp civil no 4692 of 2020 civil appeal no 385 of 2021 arising out of slp civil no 5247 of 2020 civil appeal no 357 of 2021 arising out of slp civil no 4695 of 2020 civil appeal no 365 of 2021 arising out of slp civil no 5192 of 2020 civil appeal no 355 of 2021 arising out of slp civil no 4693 of 2020 civil appeal no 366 of 2021 arising out of slp civil no 5193 of 2020 civil appeal no 347 of 2021 arising out of slp civil no 4684 of 2020 civil appeal no 342 of 2021 arising out of slp civil no 4679 of 2020 4 civil appeal no 367 of 2021 arising out of slp civil no 5194 of 2020 civil appeal no 358 of 2021 arising out of slp civil no 4696 of 2020 civil appeal no 368 of 2021 arising out of slp civil no 5195 of 2020 civil appeal no 356 of 2021 arising out of slp civil no 4694 of 2020 civil appeal no 369 of 2021 arising out of slp civil no 5197 of 2020 civil appeal no 344 of 2021 arising out of slp civil no 4681 of 2020 civil appeal no 370 of 2021 arising out of slp civil no 5198 of 2020 civil appeal no 371 of 2021 arising out of slp civil no 5230 of 2020 civil appeal no 372 of 2021 arising out of slp civil no 5231 of 2020 civil appeal no 373 of 2021 arising out of slp civil no 5232 of 2020 civil appeal no 374 of 2021 arising out of slp civil no 5233 of 2020 civil appeal no 345 of 2021 5 arising out of slp civil no 4682 of 2020 civil appeal no 386 of 2021 arising out of slp civil no 5248 of 2020 civil appeal no 346 of 2021 arising out of slp civil no 4683 of 2020 civil appeal no 375 of 2021 arising out of slp civil no 5236 of 2020 civil appeal no 376 of 2021 arising out of slp civil no 5237 of 2020 civil appeal no 377 of 2021 arising out of slp civil no 5238 of 2020 civil appeal no 387 of 2021 arising out of slp civil no 5249 of 2020 civil appeal no 359 of 2021 arising out of slp civil no 4698 of 2020 civil appeal no 378 of 2021 arising out of slp civil no 5239 of 2020 civil appeal no 379 of 2021 arising out of slp civil no 5240 of 2020 and civil appeal no 380 of 2021 arising out of slp civil no 5241 of 2020 6 j u d g m e n t hemant gupta j 1 the present appeals arise out of an order passed by the division bench of the high court of judicature at allahabad on 19 07 2019 whereby a compensation of rs 297 per square yard was awarded for the land acquired in six villages apart from the statutory benefits in the present set of 51 appeals 38 appeals pertain to land situated at village prahlad garhi 2 appeals pertain to land situated at village jhandapur 3 appeals pertain to land situated at village sahibabad 2 appeals pertain to land situated at village jhandapur sahibabad 1 appeal pertains to land situated at village arthala and 5 appeals pertain to land situated at village makanpur 2 the appellant u p awas evam vikas parishad1 has been constituted under the uttar pradesh awas evam vikas parishad adhiniyam 19652 a notification was published on 26 06 1982 by the parishad under section 28 of the act intending to acquire 1229 914 acres of land subsequently a notification under section 32 of the act was published on 28 02 1987 sections 28 and 32 of the act are equivalent to sections 4 and 6 of the land acquisition act 18943 1 for short the parishad 2for short the act 3 for short the la act 7 3 the special land acquisition officer announced an award on 27 02 1989 awarding compensation of rs 50 per square yard in respect of land of all the six villages and compensation of rs 35 per square yard was awarded in respect of land owners owning more than 8 acres the area of the land for which the compensation was awarded in the six villages is as under sr no name of village area in acres 1 arhtala 358 95 2 jhandapur 36 947 3 prahladgarhi 437 379 4 makanpur 76 6156 5 mahiuddin re kanawani 141 0734 6 sahibabad 107 05 total 1157 895 the remaining area measuring 72 019 acres was the land of the gram panchayat or the state government for which no compensation was awarded by special land acquisition officer 4 the land owners being aggrieved of the compensation awarded by the special land acquisition officer sought a reference for determining the market value the learned additional district judge while deciding the reference awarded rs 120 per square yard as the compensation apart from the statutory benefits vide award dated 23 05 2000 5 the landowners as well as the parishad filed appeals against the decision of the reference court such appeals were decided separately by the high court in respect of land acquired by the above stated notification under section 28 of the act the first appeal in u p avas 8 evam vikash parishad v jawahar lal ors 4 filed by the parishad in respect of land situated in village prahladgarhi was dismissed on 21 07 2015 the land owners have relied upon the following three sale deeds in appeal before the high court to claim higher compensation sr no date of sale deed area village rate per square yard 1 26 12 80 130 sq mtr village rs 180 sahibabad 2 12 5 80 125 sq mtr village rs 150 sahibabad 3 19 6 82 242 sq mtr village rs 150 sahibabad 6 the high court considering the three sale deeds held as under 28 considering the aforesaid facts and circumstances as also the factum that the court below has already applied deduction of 25 we do not find any fault on the part of reference court in determining market value of acquired land at rs 120 per sq yard it can neither be said to be excessive or unreasonable nor it can be said that appropriate principles in determining market value have not been considered by court below the two judgments cited by appellant do not help it in any manner since the principles laid down therein have already been noticed by court below in these facts and circumstances in our view the aforesaid point for determination formulated above is answered in favour of respondents and against appellant 7 the compensation awarded rs 120 per square yard vide order dated 21 7 2015 attained finality when the special leave petition civil no 4636 of 2016 u p avas evam vikas parishad v jawahar lal d through lrs ors filed by the parishad was dismissed on 28 03 2016 8 another appeal asha ram anr v u p awas evam vikash 4 first appeal no 56 of 2005 decided on 21 7 2015 9 parishad anr 5 arising against the award of the reference court dated 23 5 2000 filed by the land owners in respect of land situated in village jhandapur was initially dismissed by the high court on 16 12 2015 the land owners in the appeal relied upon the following sale deeds in support of their contention for determining the market value sl no date nature of area rate in rs document 1 05 05 82 sale deed 125 sq yard 150 per sq yard 2 08 06 82 sale deed 50 sq yard 200 per sq yard 3 15 01 86 sale deed 60 sq yard 200 per sq yard 4 13 01 86 sale deed 107 sq yard 200 per sq yard 9 the sale deeds dated 13 1 1986 and 15 1 1986 were not relied upon by the high court for the reason that such sale instances were of more than 3Ā½ years after the publication of notification intending to acquire land the high court found that if the compensation has to be awarded on the basis of sale deeds dated 5 5 1982 and 8 6 1982 the compensation would be lower than what has been awarded by the reference court the court in its order dated 28 10 2015 held as under 13 we find that reliance placed by appellants on the aforesaid sale deeds would not help claimants in any manner in our view the court below has already been considerate enough in determining market value at rs 120 per square yard else the aforesaid two sale deeds if relied would have cause in a lower market value before elaborating our aforesaid observation we 5 first appeal no 827 of 2000 decided on 28 10 2015 10 find it appropriate to remind ourselves with principles laid down in last several decades on the question how market value of land acquired forcibly under provisions of act 1894 should be determined 10 in asha ram anr v u p awas evam vikas parishad anr 6 the above order of the high court was taken as the basis to determine the market value of land acquired in the said appeal another appeal by the land owners asha ram anr v u p awas evam vikas parishad anr 7 was decided on 01 03 2016 relying upon the earlier two orders 11 the aforesaid orders dated 28 10 2015 16 12 2015 and 1 3 2016 were set aside by this court on 9 11 2017 and the matters were remanded to the high court vide the following order leave granted learned counsel for the parties have filed certain documents along with the special leave petitions the said documents are taken on record particularly the decision of this court in slp c nos 1506 1517 2016 titled as pradeep kapoor vs state of u p documents were not on record before the high court they are taken on record these appeals are remitted back to the high court for deciding afresh a prayer is made for consideration of the aforesaid documents it is open to the parties if they so desire to adduce additional evidence in that event the high court may ask reference court to record additional evidence and to record finding and then high court may decide the appeals afresh the judgment of the high court is set aside and the appeals are remitted to the high court for being decided afresh in accordance with law the appeals are disposed of accordingly 12 the ia to produce additional documents as mentioned in the above 6 first appeal no 552 of 2001 decided on 16 12 2015 7 first appeal no 412 of 2001 decided on 1 3 2016 11 order has been placed along with the written submissions by the land owners before this court apart from the award by the special land acquisition officer and the order of the reference court various other judgments pertaining to different acquisitions were produced 13 the high court thereafter decided the 53 appeals on 19 07 2019 awarding a sum of rs 297 per square yard as compensation for acquiring the land of the six villages as mentioned in the notification 51 appeals were preferred in respect of acquisition of land by the parishad and the others are in respect of the acquisition by ghaziabad development authority8 the high court proceeded as if the notification for the acquisition for the parishad and gda is the same and for the same acquisition proceedings the land acquired by the parishad vide notification dated 26 06 1982 is the subject matter of the present appeals it is pertinent to note that the said land is not for the benefit of the gda the high court in the impugned judgment held as under accordingly we find that all the appellants in both the sets of first appeals are entitled to compensation at the rate of rs 297 per square yard we have mentioned in detail regarding the other similar cases where compensation has been awarded at the rate of rs 297 per square yard even though there were gaps between the different notifications but the villages are same as discussed above narendra supra lays emphasis on fair compensation and on parity of compensation in respect of similarly situated land a careful analysis of the said judgment clearly shows that gaps of a few years in the notifications have been ignored by the supreme court and this court also in the subsequent judgment in first appeal no 522 of 2009 pradeep kumar v state of u p which has been affirmed by the supreme court we do not find any reason for not awarding compensation 8 for short gda 12 at the same rate accordingly the orders of the reference court dated 13th april 1998 18th february 2000 23rd may 2000 29th march 2001 and 02nd april 2002 which are under challenge in the respective appeals are set aside the appellants are entitled to compensation of the land at the rate of rs 297 per square yard along with other statutory benefits under the law which shall be calculated and paid to them expeditiously within six months from today 14 the high court referred to the judgment of this court in narendra ors v state of uttar pradesh ors 9 wherein compensation of rs 297 per square yard was provided in respect of acquisition by the state vide notification dated 12 9 1986 for the land situated in village makanpur for planned development of vaishali the high court in a judgment under appeal had restricted the amount of compensation to the amount on which court fees was affixed this court held as under 16 simply because the appellants had paid court fee on the claim at the rate of rs 115 square yards could not be the reason to deny the compensation at a higher rate this could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of rs 297 per square yards 15 in another matter referred by the high court pradeep kumar v state of u p 10 this court had remanded the appeals to the high court on 16 2 2016 as it awarded rs 135 per square yard as compensation vide its order dated 15 4 2015 the appeals arose out of a notification under section 4 of the la act published on 15 03 1988 for acquisition of land in village makanpur for planned industrial development at new 9 civil appeal nos 10429 10430 of 2017 decided on 11 09 2017 10 2016 6 scc 308 13 okhla industrial development authority11 constituted under the uttar pradesh industrial area development act 1976 after remand by this court the high court on 21 04 2016 awarded rs 297 per square yard as the compensation for the land acquired 16 mr mishra learned senior counsel appearing for the parishad argued that the high court has ignored the date of notification i e 26 6 1982 by which the land in the present matter was acquired in the matter of pradeep kumar the notification was dated 15 03 1988 in respect of land located in village makanpur at noida however in the present matter more than 1000 acres of land situated in five other villages is to be acquired the land in district ghaziabad sought to be acquired by the parishad is on the northern side of the national highway 24 which passes through village makanpur whereas the land on the southern side of national highway is a part of noida district gautam budh nagar noida is a well developed town as compared to the developing town of ghaziabad situated on the other side of the national highway 17 mr gupta on the other hand vehemently argued on behalf of the land owners that the land situated in village makanpur was the subject matter of acquisition for noida as well as gda apart from the parishad it was contended that the purpose for which the land is acquired or the authority which acquired the land is inconsequential as the land owners are entitled to compensation irrespective of any such factors in the written submissions reference has been made to the statement of 11 for short noida 14 inderraj singh pw 1 to submit that at the time of acquisition there were industrial units as well as residential colonies of vaishali and kaushambi reliance was placed upon finding of the reference court which is to the following effect 10 from the above averments it is proved that the position and status of disputed acquired land is of high quality and these lands are of good potential with a view to productivity and other usages and is fit for residential and commercial capacity 18 in the written submissions filed on behalf of the land owners two maps have also been referred first map is of ghaziabad which is on the northern side of national highway 24 and the second map is stated to be of an area now covered within the jurisdiction of noida i e in respect of chalera banger bhangel begampur nagla charandas tilpatabad kakrana khawaspur such map submitted with the written submissions is not legible it is submitted that the village makanpur is close to delhi as compared to the above said villages which are now parts of noida it has been stated that a compensation of rs 297 per square yard has been awarded under the notification dated 19 12 1980 for the land situated in village makanpur hence the present land owners are also entitled to the same amount of compensation as per the argument of mr gupta the land acquired is better located than the land which is the subject matter of acquisition for noida the distances of the villages presently under the jurisdiction of noida and ghaziabad from the borders of delhi have also been submitted before us though such 15 distances are not part of the pleadings or evidence before the reference court or the high court the said table has been reproduced hereunder there is no dispute that landowners of village across nh 24 ex amples of which were cited before this court during the course of hearing have all been awarded compensation rs 297 per square yard the approximate distance to delhi from the villages involved in the present case and those across nh 24 is as under s village under approximate village under ghaziabad approximate no ghaziabad distance jurisdiction at the distance jurisdiction in km relevant time in km presently under noida 1 arthla 6 chalera banger 6 5 2 jhandapur 3 5 bhangel 12 3 prahladgarhi 3 5 begampur 8 4 makanpur 3 nagla charandas 13 5 mohiuddinpur 6 tilpatabad 14 kanavani 6 sahibabad 3 5 chhalera khadar 5 7 kakrana 13 khawaspur the above table would show that for villages which are at a dis tance of 13 14 km from delhi have been awarded compensation rs 297 per square yard and therefore the respondents in the present case deserve compensation at least rs 297 per square yard if not more 19 in the written submissions submitted on behalf of shri rohit kumar singh learned counsel for the land owners it is asserted that the state government has decided that 731 acres of land would be carved out from the total land acquired in 1982 and handed over to the gda it is also submitted that a notification was issued under section 4 of the la act on 28 2 1987 in respect of 731 acres of land in the present set of appeals we are not dealing with the acquisition of land intended to be 16 acquired by way of a notification under section 4 of the la act dated 28 2 1987 mr singh in the written submissions has submitted that the possession was taken over by the gda on 14 6 1988 and 29 6 1988 which was based upon development work taken place from 1982 onwards we do not find such facts emanate from the orders passed by the special land acquisition officer the reference court and the order of the high court the land acquired by the gda is not part of determination of the compensation in the present set of appeals 20 the principles of determining the market value are delineated under sections 23 and 24 of the la act and are well settled by the plethora of judgments on the said subject matter the provisions of the la act and some of the judgments are referred hereinafter 23 matters to be considered in determining compensation 1 in determining the amount of compensation to be awarded for land acquired under this act the court shall take into consideration first the market value of the land at the date of the publication of the notification under section 4 sub section 1 xx xx xx 24 matters to be neglected in determining compensation xx xx xx fifthly any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired sixthly any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put 17 21 a three judge bench of this court12 indicated methods of valuation to be adopted to ascertain the market value of land on the date of the notification under section 4 1 as i opinion of experts ii the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and iii a number of years purchase of the actual or immediately prospective profits of the lands acquired 22 this court13 held that the acid test which the court should always adopt in determining the market value in matters of compulsory acquisition is to eschew feats of imagination and sit in the armchair of a prudent willing purchaser it was held as under 6 no prudent purchaser would purchase large extent of land on the basis of sale of a small extent of land in the open market the acid test the court should always adopt in determining market value in the matter of compulsory acquisition would be to eschew feats of imagination sit in the armchair of a prudent willing purchaser it should consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation taking these facts into consideration we are of the view that the reasonable and adequate compensation for the lands would be at a net rate of rs 22 per sq mtr after giving deduction of 1 3rd of the amount towards developmental charges therefore the claimants would be entitled to the compensation rs 22 per sq mtr they are also entitled to the statutory benefits on the enhanced compensation 23 this court14 has also held that in fixation of rate of compensation under the land acquisition act there is always some element of guesswork but 12 smt tribeni devi ors v collector of ranchi and vice versa 1972 1 scc 480 13 gujarat industrial development corpn v narottambhai morarbhai anr 1996 11 scc 159 14 land acquisition officer v b vijender reddy ors 2001 10 scc 669 18 that has to spring from the totality of evidence the pattern of rate the pattern of escalation and escalation of price in the years preceding and succeeding the notification under section 4 of the la act the court has held that 13 the first question we proceed to consider is whether the high court was right to enhance the rate from the rate recorded in exhibits a 1 and a 2 by rs 10 000 per acre per year for three years it is true in the fixation of rate of compensation under the land acquisition act there is always some element of guesswork but that has to be based on some foundation it must spring from the totality of evidence the pattern of rate the pattern of escalation and escalation of price in the years preceding and succeeding section 4 notification etc in other words the guesswork could reasonably be inferable from it it is always possible to assess the rate within this realm in the present case we find there are three exemplars i e exhibits a 1 and a 2 which are three years preceding the date of notification and exhibit a 3 which is of the same point of time when section 4 notification was issued 24 further this court15 has held that for determining the market value of the land under acquisition suitable adjustments have to be made while considering the various positive and negative factors the following observations have been made 18 one of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor it is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not 19 market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special 15 viluben jhalejar contractor dead by lrs v state of gujarat 2005 4 scc 789 19 needs of a particular purchase where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under section 4 1 or otherwise other sale instances as well as other evidences have to be considered xx xx xx 21 whereas a smaller plot may be within the reach of many a large block of land will have to be developed preparing a layout plan carving out roads leaving open spaces plotting out smaller plots waiting for purchasers and the hazards of an entrepreneur such development charges may range between 20 and 50 of the total price 25 this court16 has delineated the following factors responsible for increase in land prices such as situation of the land nature of development in surrounding area availability of land for development in the area and demand for the land in the area it was held 16 much more unsafe is the recent trend to determine the market value of acquired lands with reference to future sale transactions or acquisitions to illustrate if the market value of a land acquired in 1992 has to be determined and if there are no sale transactions acquisitions of 1991 or 1992 prior to the date of preliminary notification the statistics relating to sales acquisitions in future say of the years 1994 1995 or 1995 1996 are taken as the base price and the market value in 1992 is worked back by making deductions at the rate of 10 to 15 per annum how far is this safe one of the fundamental principles of valuation is that the transactions subsequent to the acquisition should be ignored for determining the market value of acquired lands as the very acquisition and the consequential development would accelerate the overall development of the surrounding areas resulting in a sudden or steep spurt in the prices let us illustrate let us assume there was no development activity in a particular area the appreciation in market price in such area would be slow and minimal but if some lands in that area are 16 general manager oil and natural gas corporation limited v rameshbhai jivanbhai patel anr 2008 14 scc 745 20 acquired for a residential commercial industrial layout there will be all round development and improvement in the infrastructure amenities facilities in the next one or two years as a result of which the surrounding lands will become more valuable even if there is no actual improvement in infrastructure the potential and possibility of improvement on account of the proposed residential commercial industrial layout will result in a higher rate of escalation in prices as a result if the annual increase in market value was around 10 per annum before the acquisition the annual increase of market value of lands in the areas neighbouring the acquired land will become much more say 20 to 30 or even more on account of the development proposed development therefore if the percentage to be added with reference to previous acquisitions sale transactions is 10 per annum the percentage to be deducted to arrive at a market value with reference to future acquisitions sale transactions should not be 10 per annum but much more the percentage of standard increase becomes unreliable courts should therefore avoid determination of market value with reference to subsequent future transactions even if it becomes inevitable there should be greater caution in applying the prices fetched for transactions in future be that as it may 26 the relationship between the market value of land and its potentiality has also been discussed by this court17 wherein it was observed that 4 the market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired in considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded the guiding star would be the conduct of hypothetical willing vendor who would offer the land and a purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions but not an anxious dealing at arm s length nor facade of sale nor fictitious sale brought about in quick succession or otherwise to inflate the market value the determination of market value is the prediction of an economic event viz a price 17 atma singh dead through lrs ors v state of haryana anr 2008 2 scc 568 21 outcome of hypothetical sale expressed in terms of probabilities 5 for ascertaining the market value of the land the potentiality of the acquired land should also be taken into consideration potentiality means capacity or possibility for changing or developing into state of actuality it is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner the question whether a land has potential value or not is primarily one of fact depending upon its condition situation user to which it is put or is reasonably capable of being put and proximity to residential commercial or industrial areas or institutions the existing amenities like water electricity possibility of their further extension whether near about town is developing or has prospect of development have to be taken into consideration 27 in another three judge bench of this court18 the court held as under 13 one other important factor which also should be borne in mind is that it may not be safe to rely only on an award involving a neighbouring area irrespective of the nature and quality of the land for determination of market value again the positive and negative factors germane therefor should be taken into consideration as laid down by this court in viluben jhalejar contractor v state of gujarat 2005 4 scc 789 namely scc p 797 para 20 28 the land forming the subject matter of the present appeals was acquired in pursuance of notification under section 28 of the act published on 26 6 1982 therefore firstly the attempt to determine the market value should be based on the sale instances which are proximate to both the date of notification under section 28 of the act and to the land sought to be acquired the land owners have relied upon seven sale instances in respect of villages of which the land was acquired out of such seven 18 revenue divisional officer cum land acquisition officer v shaik azam saheb ors 2009 4 scc 395 22 sale instances two are almost four years later than the publication of notification under section 28 of the act and thus cannot be taken into consideration in terms of the section 24 of the la act 29 the potentiality of the acquired land is one of the primary factors to be taken into consideration to determine the market value of the land potentiality refers to the capacity or possibility for changing or developing into the state of actuality the market value of a property has to be determined while having due regard to its existing conditions with all the existing advantages and its potential possibility when led out in its most advantageous manner the question whether a land has potential value or not primarily depends upon its condition situation use to which it is put or its reasonable capability of being put and also its proximity to residential commercial or industrial areas institutions the existing amenities like water electricity as well as the possibility of their further extension for instance whether near about town is developing or has prospects of development have to be taken into consideration it also depends upon the connectivity and the overall development of the area 30 the record in the present matter does not suggest that there were large scale development activities the evidence is rather of sale of small areas there is nothing on record as to when the industrial units were set up and what was the cost of land furthermore there are no sale instances of land situated in village makanpur prior to date of 23 notification i e 26 6 1982 the sale instances produced by the land owners pertain to village sahibabad and jhandapur which are at a distance of about 3 5 kms from delhi border this court19 while dealing with comparable sale instances has held that 14 thus comparable sale instances of similar lands in the neighbourhood at or about the date of notification under section 4 1 of the act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner nevertheless while ascertaining compensation it is the duty of the court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it 31 the sale instances of a smaller area have to be considered while keeping in view the principle that where a large area is the subject matter of acquisition suitable deduction is required to be made as no prudent purchaser would purchase large extent of land on the basis of sale of a small extent in the open market the court thus has to consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation this court has even provided for 50 deduction for development charges on the price mentioned in the sale deed 20 32 the land owners have not produced any other sale deed or award of compensation on account of acquisition of land in the northern side of national highway 24 prior to notification in question it could thus lead to an inference that there were not many sale transactions prior to the 19 mohammad raofuddin v land acquisition officer 2009 14 scc 367 20 himmat singh ors v state of madhya pradesh anr 2013 16 scc 392 24 notification in question some industries might have set up their units keeping in view the proximity to delhi but details regarding when such units were set up and at what price these units purchased the land have not been brought on record as mentioned earlier the market value has to be determined on the basis of what a purchaser is willing to pay on the date of notification it cannot be as per any rule of thumb without any reference to the prevalent market value on the date of acquisition on record 33 the reference court had applied 1 3rd deduction in respect of land situated in village sahibabad on the sale price of rs 180 per square meters of land measuring 130 square meters vide sale deed dated 26 12 1980 whereas the deduction of 40 deduction in respect of land situated in village jhandapur on the sale price of rs 200 per square meters of land measuring 50 square yards vide sale deed dated 5 5 1982 in view of the fact that the area sold was very small the high court has affirmed such deduction thus we are of the view that the same is reasonable and adequate deduction therefore the market value determined at rs 120 per square yard is the appropriate market value on the basis of comparable sale instances 34 the other method to determine the market value is the judicial precedents which are proximate to the time of the acquisition and proximate to the subject matter of land acquired a table of judicial precedents with the dates of publication of notification under section 28 25 of the act and section 4 of the la act the village where the land is situated and the authority for which the land was acquired to arrive at the market value is produced below such table includes the judgments referred to by mr gupta that a sum of rs 297 per square yard is the market value of the land acquired sl date of acquisition purpose of case details compensatio supreme court no publication pertain s to acquisition n per square of village villages yard awarded notification by the high u s 4 court 1 26 6 1982 makanpur up awas fa 56 of 2005 rs 120 per slp civil no parishad decided on square yard 4636 of 2016 21 7 2015 awarded by dismissed on reference 28 3 2016 court maintained 2 15 3 1988 makanpur noida fa no 522 of 297 earlier civil appeal 2009 no 1506 1507 of pradeep kumar 2016 slp civil v state of up nos 25237 25248 anr and other of 2015 connected pradeep kumar appeals etc etc v state of decided on u p anr allowed 21 4 2016 on 16 2 2016 2016 6 scc 308 3 12 9 1986 makanpur ghaziabad fa no 451 of rs 115 civil appeals no developmen 1999 10429 10430 of t authority narendra v 2017 preferred by state of u p land owners was ors decided allowed on on 5 12 2014 11 9 2017 and the compensation was enhanced to rs 297 per square yards 4 28 02 1987 makanpur ghaziabad fa no 910 of 297 slp civil no developmen 2000 gda v 5815 of 2015 with t authority kashi ram connected slps ors with filed by gda connected dismissed on appeals by the 5 5 2015 land owners decided on 13 11 2014 26 5 16 8 1988 makanpur ghaziabad fa no 41 of rs 160 per civil appeal no developmen 2005 square yard 16960 of 2016 jai t authority rameshwar awarded by prakash v state of dayal v state reference up allowed on of up court 24 10 2017 and other maintained compensation connected enhanced to rs appeals 297 per square decided on yard 22 7 2015 6 19 12 1980 chhalera khadar noida fa no 310 of rs 297 appeal filed by the 2008 state was mohkam dismissed as anr v state of withdrawn on u p 30 6 2016 decided on 16 2 2015 7 1983 1986 bhangel noida fa no rs 297 slp c no 15867 and 1988 begumpur 564 1997 15883 of 2013 by khazan ors noida dismissed on v state of u p 5 2 2014 and other connected appeals decided on 11 10 2012 1986 1988 nagla 1991 and charandas 1992 geha tilapatabagh chhalera bangar 8 24 03 1988 bhangel noida fa no rs 297 appeals preferred begumpur 1056 1999 by authority in ca raghuraj no 1593 1594 of singh ors v 2011 was state of u p dismissed on anr 13 1 2015 with connected appeals decided on 19 5 2010 9 27 2 1988 chhalera bangar noida fa no 744 of rs 297 50 slp no 17209 of corrigendum 2001 2008 noida vs 24 6 1989 jagdish jagdish chandra chandra and dismissed on other appeals 5 2 2014 decided on 14 12 2007 10 notifications names of villages noida fa 162 of 1987 rs 297 slp cc no 22480 were issued in not available from kareem v state 22500 of 2015 different the order but land of up and other dismissed on years acquired is said to connected 27 1 2016 be situated near appeals to the villages decided on bhangel 3 12 2014 begumpur nagla charandas geha tilapatabagh chhalera bangar 27 35 the order passed by this court on 9 11 2017 for fresh determination on the basis of additional documents was based on the judgments pertaining to above mentioned acquisitions in terms of the order passed by this court no additional evidence was produced before the high court and the submissions were confined to the material already on record such judgments as discussed above are later in time except the land situated in chhalera khadar now forming part of noida for which notification was published on 19 12 1980 it is pertinent to note that the proximity from delhi border would not be the determining factor but the distance between the two villages inter se would be relevant as noida spread over a large area has different access roads from delhi and ghaziabad however such distance has not been disclosed 36 the high court in jagdish chandra ors v new okhla industrial development authority noida anr 21 had determined rs 297 as the market value of the land situated in chhalera bangar now forming part of noida intended to be acquired vide notification published under section 4 of the la act on 27 2 1988 the high court had noted the advantageous location of noida when it held that valuation of the landed property is enormously rising day by day the location of the land as stated is nearer to developed area of noida the land is acquired for the purpose of making park neither it is required for commercial purpose nor for residential purpose no question of largeness of the land is available therefore we are not aware what is the basis of 21 first appeal no 744 of 2001 decided on 14 12 2007 28 deduction 37 the first notification for acquisition of land in village makanpur the village which is located on both sides of national highway 24 was published on 26 6 1982 for the land situated on the northern side of the national highway that is the notification in question 38 in pradeep kumar after remand the high court awarded rs 297 per square yard as the compensation in pursuance of notification dated 15 3 1988 of the land situated in village makanpur sr no 2 in the above table for the benefit of noida this court in narendra awarded compensation of rs 297 per square yard for the land acquired in village makanpur in pursuance of the notification under section 4 of the la act published on 12 9 1986 sr no 2 in the above table such land is in the area of noida on the southern side of the national highway 39 the other villages subject matter of acquisition i e arthla jhandapur prahladgarhi mahiuddin re kanawani and sahibabad are farther away from the national highway than the land situated in village makanpur since the special land acquisition collector as well as the reference court has determined uniform compensation for the entire land acquired therefore we do not find that the compensation awarded of land situated in village makanpur on the basis of notification 4 5 years later is a reasonable yardstick for determining compensation of over 1100 acres of land in the other villages there is no judicial precedent in respect of land situated in other five villages which are subject matter of 29 the acquisition in the present group of appeals the orders passed by this court relied upon are either subsequent to the notification in question and or for the acquisition for the purpose of planned development of noida 40 a compensation of rs 297 per square yard was awarded for land acquired for the purpose of gda vide notification dated 28 2 1987 and 16 8 1988 sr no 4 5 in the above table the said acquisition was five years after the acquisition in question the development activity initiated vide notification dated 26 6 1982 would be relevant to determine the market value on account of acquisition by virtue of the subsequent notification but time gap of more than five years will not entail the same amount of compensation in respect of the land acquired five years earlier 41 the compensation determined on the basis of a notification five years later cannot be a yardstick for determining compensation of the land which is subject matter of present acquisition years earlier still further the high court was not justified in observing that gaps of few years in the notification have been ignored by this court in fact on the contrary the high court has failed to note that the date of notification for the acquisition of land for the benefit of parishad is five years earlier than those in the judgments relied upon by the high court 42 in respect of land situated on northern side of national highway the land was acquired vide notifications dated 28 2 1987 and 12 9 1986 in 30 the case of narendra and kashi and on 16 8 1988 in the case of jai prakash whereas on the southern side of national highway for the benefit of noida the land of village makanpur became subject matter of acquisition vide notification dated 10 3 1988 in the case of pradeep kumar and on 15 3 1988 in the case of charan kaur 43 for the land situated on the northern side of the national highway for the benefit of the parishad the acquisition has attained finality with the dismissal of slp civil no 4636 of 2016 on 28 3 2016 the compensation assessed in the other aforementioned cases is subsequent to the date of notification therefore none of the orders are determinative of the amount of compensation hence the market value as determined by the high court cannot be sustained either on the basis of the sale deeds or on the strength of judicial orders there is no justification of enhancement of compensation awarded by the reference court i e rs 120 per square yard 44 consequently the present appeals are hereby allowed the order passed by the high court in the appeals preferred by the land owners is set aside and the compensation awarded by the reference court rs 120 per square yard apart from statutory benefits is restored j uday umesh lalit 31 j hemant gupta j s ravindra bhat new delhi march 23 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 337 of 2021 arising out of slp civil no 4445 of 2020 u p awas evam vikash parishad appellant s versus asha ram d thr lrs ors respondent s with civil appeal no 360 of 2021 arising out of slp civil no 5184 of 2020 civil appeal no 340 of 2021 arising out of slp civil no 4447 of 2020 civil appeal no 338 of 2021 arising out of slp civil no 4444 of 2020 civil appeal no 361 of 2021 arising out of slp civil no 5185 of 2020 civil appeal no 362 of 2021 arising out of slp civil no 5188 of 2020 2 civil appeal no 348 of 2021 arising out of slp civil no 4685 of 2020 civil appeal no 343 of 2021 arising out of slp civil no 4680 of 2020 civil appeal no 382 of 2021 arising out of slp civil no 5244 of 2020 civil appeal no 363 of 2021 arising out of slp civil no 5190 of 2020 civil appeal no 381 of 2021 arising out of slp civil no 5242 of 2020 civil appeal no 339 of 2021 arising out of slp civil no 4446 of 2020 civil appeal no 349 of 2021 arising out of slp civil no 4686 of 2020 civil appeal no 383 of 2021 arising out of slp civil no 5245 of 2020 civil appeal no 350 of 2021 arising out of slp civil no 4687 of 2020 civil appeal no 351 of 2021 arising out of slp civil no 4688 of 2020 civil appeal no 352 of 2021 arising out of slp civil no 4690 of 2020 civil appeal no 384 of 2021 3 arising out of slp civil no 5246 of 2020 civil appeal no 341 of 2021 arising out of slp civil no 4448 of 2020 civil appeal no 364 of 2021 arising out of slp civil no 5191 of 2020 civil appeal no 353 of 2021 arising out of slp civil no 4691 of 2020 civil appeal no 354 of 2021 arising out of slp civil no 4692 of 2020 civil appeal no 385 of 2021 arising out of slp civil no 5247 of 2020 civil appeal no 357 of 2021 arising out of slp civil no 4695 of 2020 civil appeal no 365 of 2021 arising out of slp civil no 5192 of 2020 civil appeal no 355 of 2021 arising out of slp civil no 4693 of 2020 civil appeal no 366 of 2021 arising out of slp civil no 5193 of 2020 civil appeal no 347 of 2021 arising out of slp civil no 4684 of 2020 civil appeal no 342 of 2021 arising out of slp civil no 4679 of 2020 4 civil appeal no 367 of 2021 arising out of slp civil no 5194 of 2020 civil appeal no 358 of 2021 arising out of slp civil no 4696 of 2020 civil appeal no 368 of 2021 arising out of slp civil no 5195 of 2020 civil appeal no 356 of 2021 arising out of slp civil no 4694 of 2020 civil appeal no 369 of 2021 arising out of slp civil no 5197 of 2020 civil appeal no 344 of 2021 arising out of slp civil no 4681 of 2020 civil appeal no 370 of 2021 arising out of slp civil no 5198 of 2020 civil appeal no 371 of 2021 arising out of slp civil no 5230 of 2020 civil appeal no 372 of 2021 arising out of slp civil no 5231 of 2020 civil appeal no 373 of 2021 arising out of slp civil no 5232 of 2020 civil appeal no 374 of 2021 arising out of slp civil no 5233 of 2020 civil appeal no 345 of 2021 5 arising out of slp civil no 4682 of 2020 civil appeal no 386 of 2021 arising out of slp civil no 5248 of 2020 civil appeal no 346 of 2021 arising out of slp civil no 4683 of 2020 civil appeal no 375 of 2021 arising out of slp civil no 5236 of 2020 civil appeal no 376 of 2021 arising out of slp civil no 5237 of 2020 civil appeal no 377 of 2021 arising out of slp civil no 5238 of 2020 civil appeal no 387 of 2021 arising out of slp civil no 5249 of 2020 civil appeal no 359 of 2021 arising out of slp civil no 4698 of 2020 civil appeal no 378 of 2021 arising out of slp civil no 5239 of 2020 civil appeal no 379 of 2021 arising out of slp civil no 5240 of 2020 and civil appeal no 380 of 2021 arising out of slp civil no 5241 of 2020 6 j u d g m e n t hemant gupta j 1 the present appeals arise out of an order passed by the division bench of the high court of judicature at allahabad on 19 07 2019 whereby a compensation of rs 297 per square yard was awarded for the land acquired in six villages apart from the statutory benefits in the present set of 51 appeals 38 appeals pertain to land situated at village prahlad garhi 2 appeals pertain to land situated at village jhandapur 3 appeals pertain to land situated at village sahibabad 2 appeals pertain to land situated at village jhandapur sahibabad 1 appeal pertains to land situated at village arthala and 5 appeals pertain to land situated at village makanpur 2 the appellant u p awas evam vikas parishad1 has been constituted under the uttar pradesh awas evam vikas parishad adhiniyam 19652 a notification was published on 26 06 1982 by the parishad under section 28 of the act intending to acquire 1229 914 acres of land subsequently a notification under section 32 of the act was published on 28 02 1987 sections 28 and 32 of the act are equivalent to sections 4 and 6 of the land acquisition act 18943 1 for short the parishad 2for short the act 3 for short the la act 7 3 the special land acquisition officer announced an award on 27 02 1989 awarding compensation of rs 50 per square yard in respect of land of all the six villages and compensation of rs 35 per square yard was awarded in respect of land owners owning more than 8 acres the area of the land for which the compensation was awarded in the six villages is as under sr no name of village area in acres 1 arhtala 358 95 2 jhandapur 36 947 3 prahladgarhi 437 379 4 makanpur 76 6156 5 mahiuddin re kanawani 141 0734 6 sahibabad 107 05 total 1157 895 the remaining area measuring 72 019 acres was the land of the gram panchayat or the state government for which no compensation was awarded by special land acquisition officer 4 the land owners being aggrieved of the compensation awarded by the special land acquisition officer sought a reference for determining the market value the learned additional district judge while deciding the reference awarded rs 120 per square yard as the compensation apart from the statutory benefits vide award dated 23 05 2000 5 the landowners as well as the parishad filed appeals against the decision of the reference court such appeals were decided separately by the high court in respect of land acquired by the above stated notification under section 28 of the act the first appeal in u p avas 8 evam vikash parishad v jawahar lal ors 4 filed by the parishad in respect of land situated in village prahladgarhi was dismissed on 21 07 2015 the land owners have relied upon the following three sale deeds in appeal before the high court to claim higher compensation sr no date of sale deed area village rate per square yard 1 26 12 80 130 sq mtr village rs 180 sahibabad 2 12 5 80 125 sq mtr village rs 150 sahibabad 3 19 6 82 242 sq mtr village rs 150 sahibabad 6 the high court considering the three sale deeds held as under 28 considering the aforesaid facts and circumstances as also the factum that the court below has already applied deduction of 25 we do not find any fault on the part of reference court in determining market value of acquired land at rs 120 per sq yard it can neither be said to be excessive or unreasonable nor it can be said that appropriate principles in determining market value have not been considered by court below the two judgments cited by appellant do not help it in any manner since the principles laid down therein have already been noticed by court below in these facts and circumstances in our view the aforesaid point for determination formulated above is answered in favour of respondents and against appellant 7 the compensation awarded rs 120 per square yard vide order dated 21 7 2015 attained finality when the special leave petition civil no 4636 of 2016 u p avas evam vikas parishad v jawahar lal d through lrs ors filed by the parishad was dismissed on 28 03 2016 8 another appeal asha ram anr v u p awas evam vikash 4 first appeal no 56 of 2005 decided on 21 7 2015 9 parishad anr 5 arising against the award of the reference court dated 23 5 2000 filed by the land owners in respect of land situated in village jhandapur was initially dismissed by the high court on 16 12 2015 the land owners in the appeal relied upon the following sale deeds in support of their contention for determining the market value sl no date nature of area rate in rs document 1 05 05 82 sale deed 125 sq yard 150 per sq yard 2 08 06 82 sale deed 50 sq yard 200 per sq yard 3 15 01 86 sale deed 60 sq yard 200 per sq yard 4 13 01 86 sale deed 107 sq yard 200 per sq yard 9 the sale deeds dated 13 1 1986 and 15 1 1986 were not relied upon by the high court for the reason that such sale instances were of more than 3Ā½ years after the publication of notification intending to acquire land the high court found that if the compensation has to be awarded on the basis of sale deeds dated 5 5 1982 and 8 6 1982 the compensation would be lower than what has been awarded by the reference court the court in its order dated 28 10 2015 held as under 13 we find that reliance placed by appellants on the aforesaid sale deeds would not help claimants in any manner in our view the court below has already been considerate enough in determining market value at rs 120 per square yard else the aforesaid two sale deeds if relied would have cause in a lower market value before elaborating our aforesaid observation we 5 first appeal no 827 of 2000 decided on 28 10 2015 10 find it appropriate to remind ourselves with principles laid down in last several decades on the question how market value of land acquired forcibly under provisions of act 1894 should be determined 10 in asha ram anr v u p awas evam vikas parishad anr 6 the above order of the high court was taken as the basis to determine the market value of land acquired in the said appeal another appeal by the land owners asha ram anr v u p awas evam vikas parishad anr 7 was decided on 01 03 2016 relying upon the earlier two orders 11 the aforesaid orders dated 28 10 2015 16 12 2015 and 1 3 2016 were set aside by this court on 9 11 2017 and the matters were remanded to the high court vide the following order leave granted learned counsel for the parties have filed certain documents along with the special leave petitions the said documents are taken on record particularly the decision of this court in slp c nos 1506 1517 2016 titled as pradeep kapoor vs state of u p documents were not on record before the high court they are taken on record these appeals are remitted back to the high court for deciding afresh a prayer is made for consideration of the aforesaid documents it is open to the parties if they so desire to adduce additional evidence in that event the high court may ask reference court to record additional evidence and to record finding and then high court may decide the appeals afresh the judgment of the high court is set aside and the appeals are remitted to the high court for being decided afresh in accordance with law the appeals are disposed of accordingly 12 the ia to produce additional documents as mentioned in the above 6 first appeal no 552 of 2001 decided on 16 12 2015 7 first appeal no 412 of 2001 decided on 1 3 2016 11 order has been placed along with the written submissions by the land owners before this court apart from the award by the special land acquisition officer and the order of the reference court various other judgments pertaining to different acquisitions were produced 13 the high court thereafter decided the 53 appeals on 19 07 2019 awarding a sum of rs 297 per square yard as compensation for acquiring the land of the six villages as mentioned in the notification 51 appeals were preferred in respect of acquisition of land by the parishad and the others are in respect of the acquisition by ghaziabad development authority8 the high court proceeded as if the notification for the acquisition for the parishad and gda is the same and for the same acquisition proceedings the land acquired by the parishad vide notification dated 26 06 1982 is the subject matter of the present appeals it is pertinent to note that the said land is not for the benefit of the gda the high court in the impugned judgment held as under accordingly we find that all the appellants in both the sets of first appeals are entitled to compensation at the rate of rs 297 per square yard we have mentioned in detail regarding the other similar cases where compensation has been awarded at the rate of rs 297 per square yard even though there were gaps between the different notifications but the villages are same as discussed above narendra supra lays emphasis on fair compensation and on parity of compensation in respect of similarly situated land a careful analysis of the said judgment clearly shows that gaps of a few years in the notifications have been ignored by the supreme court and this court also in the subsequent judgment in first appeal no 522 of 2009 pradeep kumar v state of u p which has been affirmed by the supreme court we do not find any reason for not awarding compensation 8 for short gda 12 at the same rate accordingly the orders of the reference court dated 13th april 1998 18th february 2000 23rd may 2000 29th march 2001 and 02nd april 2002 which are under challenge in the respective appeals are set aside the appellants are entitled to compensation of the land at the rate of rs 297 per square yard along with other statutory benefits under the law which shall be calculated and paid to them expeditiously within six months from today 14 the high court referred to the judgment of this court in narendra ors v state of uttar pradesh ors 9 wherein compensation of rs 297 per square yard was provided in respect of acquisition by the state vide notification dated 12 9 1986 for the land situated in village makanpur for planned development of vaishali the high court in a judgment under appeal had restricted the amount of compensation to the amount on which court fees was affixed this court held as under 16 simply because the appellants had paid court fee on the claim at the rate of rs 115 square yards could not be the reason to deny the compensation at a higher rate this could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of rs 297 per square yards 15 in another matter referred by the high court pradeep kumar v state of u p 10 this court had remanded the appeals to the high court on 16 2 2016 as it awarded rs 135 per square yard as compensation vide its order dated 15 4 2015 the appeals arose out of a notification under section 4 of the la act published on 15 03 1988 for acquisition of land in village makanpur for planned industrial development at new 9 civil appeal nos 10429 10430 of 2017 decided on 11 09 2017 10 2016 6 scc 308 13 okhla industrial development authority11 constituted under the uttar pradesh industrial area development act 1976 after remand by this court the high court on 21 04 2016 awarded rs 297 per square yard as the compensation for the land acquired 16 mr mishra learned senior counsel appearing for the parishad argued that the high court has ignored the date of notification i e 26 6 1982 by which the land in the present matter was acquired in the matter of pradeep kumar the notification was dated 15 03 1988 in respect of land located in village makanpur at noida however in the present matter more than 1000 acres of land situated in five other villages is to be acquired the land in district ghaziabad sought to be acquired by the parishad is on the northern side of the national highway 24 which passes through village makanpur whereas the land on the southern side of national highway is a part of noida district gautam budh nagar noida is a well developed town as compared to the developing town of ghaziabad situated on the other side of the national highway 17 mr gupta on the other hand vehemently argued on behalf of the land owners that the land situated in village makanpur was the subject matter of acquisition for noida as well as gda apart from the parishad it was contended that the purpose for which the land is acquired or the authority which acquired the land is inconsequential as the land owners are entitled to compensation irrespective of any such factors in the written submissions reference has been made to the statement of 11 for short noida 14 inderraj singh pw 1 to submit that at the time of acquisition there were industrial units as well as residential colonies of vaishali and kaushambi reliance was placed upon finding of the reference court which is to the following effect 10 from the above averments it is proved that the position and status of disputed acquired land is of high quality and these lands are of good potential with a view to productivity and other usages and is fit for residential and commercial capacity 18 in the written submissions filed on behalf of the land owners two maps have also been referred first map is of ghaziabad which is on the northern side of national highway 24 and the second map is stated to be of an area now covered within the jurisdiction of noida i e in respect of chalera banger bhangel begampur nagla charandas tilpatabad kakrana khawaspur such map submitted with the written submissions is not legible it is submitted that the village makanpur is close to delhi as compared to the above said villages which are now parts of noida it has been stated that a compensation of rs 297 per square yard has been awarded under the notification dated 19 12 1980 for the land situated in village makanpur hence the present land owners are also entitled to the same amount of compensation as per the argument of mr gupta the land acquired is better located than the land which is the subject matter of acquisition for noida the distances of the villages presently under the jurisdiction of noida and ghaziabad from the borders of delhi have also been submitted before us though such 15 distances are not part of the pleadings or evidence before the reference court or the high court the said table has been reproduced hereunder there is no dispute that landowners of village across nh 24 ex amples of which were cited before this court during the course of hearing have all been awarded compensation rs 297 per square yard the approximate distance to delhi from the villages involved in the present case and those across nh 24 is as under s village under approximate village under ghaziabad approximate no ghaziabad distance jurisdiction at the distance jurisdiction in km relevant time in km presently under noida 1 arthla 6 chalera banger 6 5 2 jhandapur 3 5 bhangel 12 3 prahladgarhi 3 5 begampur 8 4 makanpur 3 nagla charandas 13 5 mohiuddinpur 6 tilpatabad 14 kanavani 6 sahibabad 3 5 chhalera khadar 5 7 kakrana 13 khawaspur the above table would show that for villages which are at a dis tance of 13 14 km from delhi have been awarded compensation rs 297 per square yard and therefore the respondents in the present case deserve compensation at least rs 297 per square yard if not more 19 in the written submissions submitted on behalf of shri rohit kumar singh learned counsel for the land owners it is asserted that the state government has decided that 731 acres of land would be carved out from the total land acquired in 1982 and handed over to the gda it is also submitted that a notification was issued under section 4 of the la act on 28 2 1987 in respect of 731 acres of land in the present set of appeals we are not dealing with the acquisition of land intended to be 16 acquired by way of a notification under section 4 of the la act dated 28 2 1987 mr singh in the written submissions has submitted that the possession was taken over by the gda on 14 6 1988 and 29 6 1988 which was based upon development work taken place from 1982 onwards we do not find such facts emanate from the orders passed by the special land acquisition officer the reference court and the order of the high court the land acquired by the gda is not part of determination of the compensation in the present set of appeals 20 the principles of determining the market value are delineated under sections 23 and 24 of the la act and are well settled by the plethora of judgments on the said subject matter the provisions of the la act and some of the judgments are referred hereinafter 23 matters to be considered in determining compensation 1 in determining the amount of compensation to be awarded for land acquired under this act the court shall take into consideration first the market value of the land at the date of the publication of the notification under section 4 sub section 1 xx xx xx 24 matters to be neglected in determining compensation xx xx xx fifthly any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired sixthly any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put 17 21 a three judge bench of this court12 indicated methods of valuation to be adopted to ascertain the market value of land on the date of the notification under section 4 1 as i opinion of experts ii the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and iii a number of years purchase of the actual or immediately prospective profits of the lands acquired 22 this court13 held that the acid test which the court should always adopt in determining the market value in matters of compulsory acquisition is to eschew feats of imagination and sit in the armchair of a prudent willing purchaser it was held as under 6 no prudent purchaser would purchase large extent of land on the basis of sale of a small extent of land in the open market the acid test the court should always adopt in determining market value in the matter of compulsory acquisition would be to eschew feats of imagination sit in the armchair of a prudent willing purchaser it should consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation taking these facts into consideration we are of the view that the reasonable and adequate compensation for the lands would be at a net rate of rs 22 per sq mtr after giving deduction of 1 3rd of the amount towards developmental charges therefore the claimants would be entitled to the compensation rs 22 per sq mtr they are also entitled to the statutory benefits on the enhanced compensation 23 this court14 has also held that in fixation of rate of compensation under the land acquisition act there is always some element of guesswork but 12 smt tribeni devi ors v collector of ranchi and vice versa 1972 1 scc 480 13 gujarat industrial development corpn v narottambhai morarbhai anr 1996 11 scc 159 14 land acquisition officer v b vijender reddy ors 2001 10 scc 669 18 that has to spring from the totality of evidence the pattern of rate the pattern of escalation and escalation of price in the years preceding and succeeding the notification under section 4 of the la act the court has held that 13 the first question we proceed to consider is whether the high court was right to enhance the rate from the rate recorded in exhibits a 1 and a 2 by rs 10 000 per acre per year for three years it is true in the fixation of rate of compensation under the land acquisition act there is always some element of guesswork but that has to be based on some foundation it must spring from the totality of evidence the pattern of rate the pattern of escalation and escalation of price in the years preceding and succeeding section 4 notification etc in other words the guesswork could reasonably be inferable from it it is always possible to assess the rate within this realm in the present case we find there are three exemplars i e exhibits a 1 and a 2 which are three years preceding the date of notification and exhibit a 3 which is of the same point of time when section 4 notification was issued 24 further this court15 has held that for determining the market value of the land under acquisition suitable adjustments have to be made while considering the various positive and negative factors the following observations have been made 18 one of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor it is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not 19 market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special 15 viluben jhalejar contractor dead by lrs v state of gujarat 2005 4 scc 789 19 needs of a particular purchase where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under section 4 1 or otherwise other sale instances as well as other evidences have to be considered xx xx xx 21 whereas a smaller plot may be within the reach of many a large block of land will have to be developed preparing a layout plan carving out roads leaving open spaces plotting out smaller plots waiting for purchasers and the hazards of an entrepreneur such development charges may range between 20 and 50 of the total price 25 this court16 has delineated the following factors responsible for increase in land prices such as situation of the land nature of development in surrounding area availability of land for development in the area and demand for the land in the area it was held 16 much more unsafe is the recent trend to determine the market value of acquired lands with reference to future sale transactions or acquisitions to illustrate if the market value of a land acquired in 1992 has to be determined and if there are no sale transactions acquisitions of 1991 or 1992 prior to the date of preliminary notification the statistics relating to sales acquisitions in future say of the years 1994 1995 or 1995 1996 are taken as the base price and the market value in 1992 is worked back by making deductions at the rate of 10 to 15 per annum how far is this safe one of the fundamental principles of valuation is that the transactions subsequent to the acquisition should be ignored for determining the market value of acquired lands as the very acquisition and the consequential development would accelerate the overall development of the surrounding areas resulting in a sudden or steep spurt in the prices let us illustrate let us assume there was no development activity in a particular area the appreciation in market price in such area would be slow and minimal but if some lands in that area are 16 general manager oil and natural gas corporation limited v rameshbhai jivanbhai patel anr 2008 14 scc 745 20 acquired for a residential commercial industrial layout there will be all round development and improvement in the infrastructure amenities facilities in the next one or two years as a result of which the surrounding lands will become more valuable even if there is no actual improvement in infrastructure the potential and possibility of improvement on account of the proposed residential commercial industrial layout will result in a higher rate of escalation in prices as a result if the annual increase in market value was around 10 per annum before the acquisition the annual increase of market value of lands in the areas neighbouring the acquired land will become much more say 20 to 30 or even more on account of the development proposed development therefore if the percentage to be added with reference to previous acquisitions sale transactions is 10 per annum the percentage to be deducted to arrive at a market value with reference to future acquisitions sale transactions should not be 10 per annum but much more the percentage of standard increase becomes unreliable courts should therefore avoid determination of market value with reference to subsequent future transactions even if it becomes inevitable there should be greater caution in applying the prices fetched for transactions in future be that as it may 26 the relationship between the market value of land and its potentiality has also been discussed by this court17 wherein it was observed that 4 the market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired in considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded the guiding star would be the conduct of hypothetical willing vendor who would offer the land and a purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions but not an anxious dealing at arm s length nor facade of sale nor fictitious sale brought about in quick succession or otherwise to inflate the market value the determination of market value is the prediction of an economic event viz a price 17 atma singh dead through lrs ors v state of haryana anr 2008 2 scc 568 21 outcome of hypothetical sale expressed in terms of probabilities 5 for ascertaining the market value of the land the potentiality of the acquired land should also be taken into consideration potentiality means capacity or possibility for changing or developing into state of actuality it is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner the question whether a land has potential value or not is primarily one of fact depending upon its condition situation user to which it is put or is reasonably capable of being put and proximity to residential commercial or industrial areas or institutions the existing amenities like water electricity possibility of their further extension whether near about town is developing or has prospect of development have to be taken into consideration 27 in another three judge bench of this court18 the court held as under 13 one other important factor which also should be borne in mind is that it may not be safe to rely only on an award involving a neighbouring area irrespective of the nature and quality of the land for determination of market value again the positive and negative factors germane therefor should be taken into consideration as laid down by this court in viluben jhalejar contractor v state of gujarat 2005 4 scc 789 namely scc p 797 para 20 28 the land forming the subject matter of the present appeals was acquired in pursuance of notification under section 28 of the act published on 26 6 1982 therefore firstly the attempt to determine the market value should be based on the sale instances which are proximate to both the date of notification under section 28 of the act and to the land sought to be acquired the land owners have relied upon seven sale instances in respect of villages of which the land was acquired out of such seven 18 revenue divisional officer cum land acquisition officer v shaik azam saheb ors 2009 4 scc 395 22 sale instances two are almost four years later than the publication of notification under section 28 of the act and thus cannot be taken into consideration in terms of the section 24 of the la act 29 the potentiality of the acquired land is one of the primary factors to be taken into consideration to determine the market value of the land potentiality refers to the capacity or possibility for changing or developing into the state of actuality the market value of a property has to be determined while having due regard to its existing conditions with all the existing advantages and its potential possibility when led out in its most advantageous manner the question whether a land has potential value or not primarily depends upon its condition situation use to which it is put or its reasonable capability of being put and also its proximity to residential commercial or industrial areas institutions the existing amenities like water electricity as well as the possibility of their further extension for instance whether near about town is developing or has prospects of development have to be taken into consideration it also depends upon the connectivity and the overall development of the area 30 the record in the present matter does not suggest that there were large scale development activities the evidence is rather of sale of small areas there is nothing on record as to when the industrial units were set up and what was the cost of land furthermore there are no sale instances of land situated in village makanpur prior to date of 23 notification i e 26 6 1982 the sale instances produced by the land owners pertain to village sahibabad and jhandapur which are at a distance of about 3 5 kms from delhi border this court19 while dealing with comparable sale instances has held that 14 thus comparable sale instances of similar lands in the neighbourhood at or about the date of notification under section 4 1 of the act are the best guide for determination of the market value of the land to arrive at a fair estimate of the amount of compensation payable to a landowner nevertheless while ascertaining compensation it is the duty of the court to see that the compensation so determined is just and fair not merely to the individual whose property has been acquired but also to the public which is to pay for it 31 the sale instances of a smaller area have to be considered while keeping in view the principle that where a large area is the subject matter of acquisition suitable deduction is required to be made as no prudent purchaser would purchase large extent of land on the basis of sale of a small extent in the open market the court thus has to consider whether the willing vendee would offer the rate at which the trial court proposes to determine the compensation this court has even provided for 50 deduction for development charges on the price mentioned in the sale deed 20 32 the land owners have not produced any other sale deed or award of compensation on account of acquisition of land in the northern side of national highway 24 prior to notification in question it could thus lead to an inference that there were not many sale transactions prior to the 19 mohammad raofuddin v land acquisition officer 2009 14 scc 367 20 himmat singh ors v state of madhya pradesh anr 2013 16 scc 392 24 notification in question some industries might have set up their units keeping in view the proximity to delhi but details regarding when such units were set up and at what price these units purchased the land have not been brought on record as mentioned earlier the market value has to be determined on the basis of what a purchaser is willing to pay on the date of notification it cannot be as per any rule of thumb without any reference to the prevalent market value on the date of acquisition on record 33 the reference court had applied 1 3rd deduction in respect of land situated in village sahibabad on the sale price of rs 180 per square meters of land measuring 130 square meters vide sale deed dated 26 12 1980 whereas the deduction of 40 deduction in respect of land situated in village jhandapur on the sale price of rs 200 per square meters of land measuring 50 square yards vide sale deed dated 5 5 1982 in view of the fact that the area sold was very small the high court has affirmed such deduction thus we are of the view that the same is reasonable and adequate deduction therefore the market value determined at rs 120 per square yard is the appropriate market value on the basis of comparable sale instances 34 the other method to determine the market value is the judicial precedents which are proximate to the time of the acquisition and proximate to the subject matter of land acquired a table of judicial precedents with the dates of publication of notification under section 28 25 of the act and section 4 of the la act the village where the land is situated and the authority for which the land was acquired to arrive at the market value is produced below such table includes the judgments referred to by mr gupta that a sum of rs 297 per square yard is the market value of the land acquired sl date of acquisition purpose of case details compensatio supreme court no publication pertain s to acquisition n per square of village villages yard awarded notification by the high u s 4 court 1 26 6 1982 makanpur up awas fa 56 of 2005 rs 120 per slp civil no parishad decided on square yard 4636 of 2016 21 7 2015 awarded by dismissed on reference 28 3 2016 court maintained 2 15 3 1988 makanpur noida fa no 522 of 297 earlier civil appeal 2009 no 1506 1507 of pradeep kumar 2016 slp civil v state of up nos 25237 25248 anr and other of 2015 connected pradeep kumar appeals etc etc v state of decided on u p anr allowed 21 4 2016 on 16 2 2016 2016 6 scc 308 3 12 9 1986 makanpur ghaziabad fa no 451 of rs 115 civil appeals no developmen 1999 10429 10430 of t authority narendra v 2017 preferred by state of u p land owners was ors decided allowed on on 5 12 2014 11 9 2017 and the compensation was enhanced to rs 297 per square yards 4 28 02 1987 makanpur ghaziabad fa no 910 of 297 slp civil no developmen 2000 gda v 5815 of 2015 with t authority kashi ram connected slps ors with filed by gda connected dismissed on appeals by the 5 5 2015 land owners decided on 13 11 2014 26 5 16 8 1988 makanpur ghaziabad fa no 41 of rs 160 per civil appeal no developmen 2005 square yard 16960 of 2016 jai t authority rameshwar awarded by prakash v state of dayal v state reference up allowed on of up court 24 10 2017 and other maintained compensation connected enhanced to rs appeals 297 per square decided on yard 22 7 2015 6 19 12 1980 chhalera khadar noida fa no 310 of rs 297 appeal filed by the 2008 state was mohkam dismissed as anr v state of withdrawn on u p 30 6 2016 decided on 16 2 2015 7 1983 1986 bhangel noida fa no rs 297 slp c no 15867 and 1988 begumpur 564 1997 15883 of 2013 by khazan ors noida dismissed on v state of u p 5 2 2014 and other connected appeals decided on 11 10 2012 1986 1988 nagla 1991 and charandas 1992 geha tilapatabagh chhalera bangar 8 24 03 1988 bhangel noida fa no rs 297 appeals preferred begumpur 1056 1999 by authority in ca raghuraj no 1593 1594 of singh ors v 2011 was state of u p dismissed on anr 13 1 2015 with connected appeals decided on 19 5 2010 9 27 2 1988 chhalera bangar noida fa no 744 of rs 297 50 slp no 17209 of corrigendum 2001 2008 noida vs 24 6 1989 jagdish jagdish chandra chandra and dismissed on other appeals 5 2 2014 decided on 14 12 2007 10 notifications names of villages noida fa 162 of 1987 rs 297 slp cc no 22480 were issued in not available from kareem v state 22500 of 2015 different the order but land of up and other dismissed on years acquired is said to connected 27 1 2016 be situated near appeals to the villages decided on bhangel 3 12 2014 begumpur nagla charandas geha tilapatabagh chhalera bangar 27 35 the order passed by this court on 9 11 2017 for fresh determination on the basis of additional documents was based on the judgments pertaining to above mentioned acquisitions in terms of the order passed by this court no additional evidence was produced before the high court and the submissions were confined to the material already on record such judgments as discussed above are later in time except the land situated in chhalera khadar now forming part of noida for which notification was published on 19 12 1980 it is pertinent to note that the proximity from delhi border would not be the determining factor but the distance between the two villages inter se would be relevant as noida spread over a large area has different access roads from delhi and ghaziabad however such distance has not been disclosed 36 the high court in jagdish chandra ors v new okhla industrial development authority noida anr 21 had determined rs 297 as the market value of the land situated in chhalera bangar now forming part of noida intended to be acquired vide notification published under section 4 of the la act on 27 2 1988 the high court had noted the advantageous location of noida when it held that valuation of the landed property is enormously rising day by day the location of the land as stated is nearer to developed area of noida the land is acquired for the purpose of making park neither it is required for commercial purpose nor for residential purpose no question of largeness of the land is available therefore we are not aware what is the basis of 21 first appeal no 744 of 2001 decided on 14 12 2007 28 deduction 37 the first notification for acquisition of land in village makanpur the village which is located on both sides of national highway 24 was published on 26 6 1982 for the land situated on the northern side of the national highway that is the notification in question 38 in pradeep kumar after remand the high court awarded rs 297 per square yard as the compensation in pursuance of notification dated 15 3 1988 of the land situated in village makanpur sr no 2 in the above table for the benefit of noida this court in narendra awarded compensation of rs 297 per square yard for the land acquired in village makanpur in pursuance of the notification under section 4 of the la act published on 12 9 1986 sr no 2 in the above table such land is in the area of noida on the southern side of the national highway 39 the other villages subject matter of acquisition i e arthla jhandapur prahladgarhi mahiuddin re kanawani and sahibabad are farther away from the national highway than the land situated in village makanpur since the special land acquisition collector as well as the reference court has determined uniform compensation for the entire land acquired therefore we do not find that the compensation awarded of land situated in village makanpur on the basis of notification 4 5 years later is a reasonable yardstick for determining compensation of over 1100 acres of land in the other villages there is no judicial precedent in respect of land situated in other five villages which are subject matter of 29 the acquisition in the present group of appeals the orders passed by this court relied upon are either subsequent to the notification in question and or for the acquisition for the purpose of planned development of noida 40 a compensation of rs 297 per square yard was awarded for land acquired for the purpose of gda vide notification dated 28 2 1987 and 16 8 1988 sr no 4 5 in the above table the said acquisition was five years after the acquisition in question the development activity initiated vide notification dated 26 6 1982 would be relevant to determine the market value on account of acquisition by virtue of the subsequent notification but time gap of more than five years will not entail the same amount of compensation in respect of the land acquired five years earlier 41 the compensation determined on the basis of a notification five years later cannot be a yardstick for determining compensation of the land which is subject matter of present acquisition years earlier still further the high court was not justified in observing that gaps of few years in the notification have been ignored by this court in fact on the contrary the high court has failed to note that the date of notification for the acquisition of land for the benefit of parishad is five years earlier than those in the judgments relied upon by the high court 42 in respect of land situated on northern side of national highway the land was acquired vide notifications dated 28 2 1987 and 12 9 1986 in 30 the case of narendra and kashi and on 16 8 1988 in the case of jai prakash whereas on the southern side of national highway for the benefit of noida the land of village makanpur became subject matter of acquisition vide notification dated 10 3 1988 in the case of pradeep kumar and on 15 3 1988 in the case of charan kaur 43 for the land situated on the northern side of the national highway for the benefit of the parishad the acquisition has attained finality with the dismissal of slp civil no 4636 of 2016 on 28 3 2016 the compensation assessed in the other aforementioned cases is subsequent to the date of notification therefore none of the orders are determinative of the amount of compensation hence the market value as determined by the high court cannot be sustained either on the basis of the sale deeds or on the strength of judicial orders there is no justification of enhancement of compensation awarded by the reference court i e rs 120 per square yard 44 consequently the present appeals are hereby allowed the order passed by the high court in the appeals preferred by the land owners is set aside and the compensation awarded by the reference court rs 120 per square yard apart from statutory benefits is restored j uday umesh lalit 31 j hemant gupta j s ravindra bhat new delhi march 23 2021 433 2021_crl a no 001045 001045 2021 fir the high court the telangana high court income tax andhra pradesh fir 2010 01 04 reasons why such an interim order is warranted and or is required to be passed so that it can demonstrate the application of mind by the court and the higher forum can consider what was weighed with the high court while passing such an interim order xviii whenever an interim order is passed by the high court of no coercive steps to be adopted within the aforesaid parameters the high court must clarify what does it mean by no coercive steps to be adopted as the term no coercive steps to be adopted can be said to be too vague and or broad which can be misunderstood and or misapplied emphasis supplied 37 we must now assess whether the single judge of the telangana high court has while quashing the fir decided within the parameters of the law described above the high court has taken note of the following documents filed by the kumari v govt goel v state samudhaya v state ltd v state karnataka v j mishra v union majithia v state ltd v special narain v union cbi v ashok jharkhand v lalu kahlon v state charansingh v state sirajuddin v state kerala v k mayawati v union investigation v state goyal v state devidasani v state lal v state m p v mohanlal sirajuddin v state kumari v state sirajuddin v state sirajuddin v state kumari v state kumari v state sirajuddin v state kumari v state kumari v state haryana v bhajan kumari v state kumari v state kumari v state kumari v state sirajuddin v state sirajuddin v state cbi v tapan cbi v tapan sirajuddin v state kumari v state t n v m m india v state mahajan v state kumari v state dua v union orissa v debendra parikh v cbi jain v state ramakrishnaiah v state reddy v state reddy v state krishnanand v state reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 1045 of 2021 arising out of slp crl no 1597 of 2021 central bureau of investigation cbi and anr appellants versus thommandru hannah vijayalakshmi respondents t h vijayalakshmi and anr 1 j u d g m e n t dr dhananjaya y chandrachud j this judgment has been divided into sections to facilitate analysis they are a the appeal b factual and procedural history c counsel s submissions d whether a preliminary inquiry is mandatory before registering an fir d 1 precedents of this court d 2 cbi manual d 3 analysis e whether the fir should be quashed e 1 scope of review before the high court e 2 whether the fir is liable to be quashed in the present case f conclusion 2 part a a the appeal 1 the appeal arises from a judgment dated 11 february 2020 of a single judge of the high court for the state of telangana by which i a writ petition1 filed by the respondents under article 226 of the constitution of india was allowed and ii the first information report2 dated 20 september 2017 registered against the respondents was set aside together with proceedings taken up pursuant to the fir 2 the first respondent is a commissioner of income tax while the second respondent is her spouse the second respondent is a member of the legislative assembly3 and is a minister in the state government of andhra pradesh the fir4 dated 20 september 2017 has been registered against the first respondent for being in possession allegedly of assets disproportionate to her known sources of income the second respondent is alleged to have abetted the offence the fir has thus been registered for offences punishable under section 13 2 read with section 13 1 e of the prevention of corruption act 19885 and section 109 of the indian penal code 18606 the allegation is of possession of disproportionate assets to the tune of rs 1 10 81 692 which was 22 86 per cent of the income earned during the check period between 1 april 2010 to 29 february 2016 3 while quashing the fir the high court held that i the information about the respondents income can be ascertained from their known sources of income under 1 writ petition no 8552 of 2018 2 fir 3 mla 4 fir no rc mal 2017 a 0021 5 pc act 6 ipc 3 part b section 13 1 e of the pc act such as their income tax returns information submitted to their department under the central civil services conduct rules 19647 and affidavit filed under the representation of the people act 19518 and the rules under it ii to counter the veracity of the information from these sources the appellant central bureau of investigation9 should have conducted a preliminary enquiry under the central bureau of investigation crime manual 200510 before registration of the fir and iii on the basis of the information ascertained from these known sources of income the allegations against the respondents in the fir prima facie seem unsustainable this view of the high court has been called into question in these proceedings b factual and procedural history 4 since 1992 the first respondent is a civil servant of the indian revenue services11 and was working as commissioner of income tax audit ii tamil nadu pondicherry when the fir was registered against her she is presently working as commissioner of income tax audit at hyderabad the second respondent is the spouse of the first respondent and was also a civil servant working in the indian railway accounts services till 2009 at the time of the registration of the fir he was and continues to be at present an mla of the state of andhra pradesh and 7 ccs rules 8 rp act 9 cbi 10 cbi manual 11 irs 4 part b holds the post of the minister of education for the state of andhra pradesh he was also a member of the committees on assurances sc st welfare and public accounts 5 the fir was registered against the respondents by cbi s anti corruption branch12 in chennai on 20 september 2017 the fir noted that the check period was between 1 april 2010 and 29 february 2016 the fir records that it was registered on the basis of source information received by the cbi acb chennai on the same date at about 4 pm there are four tabulated statements in the fir statement a provides that the respondents assets at the beginning of the check period 1 april 2010 were in the amount of rs 1 35 26 066 while statement b indicates that their assets at the end of the check period 29 february 2016 were rs 6 90 51 066 hence their assets earned during the check period i e between 1 april 2010 to 29 february 2016 were alleged to be to the tune of rs 5 55 25 000 according to statement c the respondents income during the check period was rs 4 84 76 630 while according to statement d their expenditure during the check period was rs 40 33 322 hence the respondents are alleged to have acquired assets pecuniary advantage to the extent of rs 5 95 58 322 adding the assets rs 5 55 25 000 and expenditure rs 40 33 322 against an income of rs 4 84 76 630 earned during the check period therefore their disproportionate assets13 during the check period were computed at rs 1 10 81 692 which is 22 86 per cent of the total income earned by them the computation reflected in the fir is as follows 12 acb 13 calculated by adding the assets and expenditure during the check period and subtracting the income from it 5 part b calculation of disproportionate assets sl particulars of assets amount no rs a assets at the beginning of the check 13 526 066 period b assets at the end of the check period 69 051 066 c assets during the check period b a 55 525 000 d income during the check period 48 476 630 e expenditure during the check period 4 033 322 f assets expenditure income da 11 081 692 da percentage 22 86 on the basis of the fir dated 20 september 2017 the cbi acb chennai registered a case14 against the respondents for offences punishable under sections 13 2 read with 13 1 e of the pc act and section 109 of the ipc 6 on 5 march 2018 the respondents filed a writ petition before the telangana high court under article 226 of the constitution seeking quashing of the fir in their writ petition the respondents averred that i the fir is politically motivated since the second respondent belongs to a rival political party ii the appellant did not conduct a preliminary enquiry before registering the fir and iii the particulars in the fir did not constitute an offence and would not as they stand result in the respondents conviction further the petition pointed out inconsistencies in the fir where certain assets had been allegedly over valued while income had been under valued without any explanation hence the petition before the high court urged that the fir was liable to be quashed to support their contentions the respondents annexed their income tax returns immovable property declarations for the period 14 case rc 21 a 12017 6 part b between 2010 to 2017 made by the first respondent under the ccs rules affidavit filed by the second respondent under the rp act and rules thereunder in 2014 and letters under the ccs rules explaining the cost value of construction of their house 7 in response the appellant filed a counter affidavit before the telangana high court where it was stated inter alia that i the writ petition was filed belatedly two years after the registration of the fir ii in any case the writ petition should have been filed before the madras high court since the court of the principal special judge for cbi cases viiith additional city civil court chennai had jurisdiction over the case and the respondents were aware of this and the fir had also been registered by the cbi acb at chennai iii the fir had been registered on the basis of source information and the case was still under investigation iv the respondents would be provided a chance to explain their case during the investigation and there was no requirement to conduct preliminary enquiry before the registration of the fir and v the respondents income and assets cannot be conclusively ascertained from the documents annexed by them since their veracity has to be determined during the investigation hence the appellants urged that the fir could not be quashed 8 as noted earlier in this judgment the telangana high court allowed the respondents writ petition by its impugned judgement dated 11 february 2020 and quashed the fir and set aside all proceedings initiated pursuant to it the appellant cbi has now moved this court for challenging the decision of the high court 7 part c c counsel s submissions 9 assailing the judgment of the telangana high court ms aishwarya bhati additional solicitor general15 appearing on behalf of the cbi has urged the following submissions i the telangana high court did not have the jurisdiction to entertain the writ petition filed by the respondents since a the fir had been registered by the cbi acb at chennai and b it had been submitted to the principal special judge for cbi cases viiith additional city civil court chennai hence only the madras high court had jurisdiction to entertain the writ petition ii the cbi manual does not make it mandatory to conduct a preliminary enquiry before the registration of the fir and its provisions are directory iii a preliminary enquiry is only conducted when the information received is not sufficient to register a regular case however when the information available is adequate to register a regular case since it discloses the commission of a cognizable offence no preliminary enquiry is necessary this will depend on the facts and circumstances of each case and the preliminary enquiry cannot be made mandatory for all cases of alleged corruption this proposition finds support in the judgments of this court in 15 asg 8 part c lalita kumari v govt of up and others16 lalita kumari and the state of telangana v managipet17 managipet iv the fir was registered on the basis of reliable source information collected during the investigation of another case18 in which the first respondent was one of the accused during the investigation of that case cbi conducted searches at four places belonging to the first respondent during which documents were seized and she was also examined on the basis of such information and documents the fir was registered in the present case hence there was no need for a preliminary enquiry v there is also no need to conduct a preliminary enquiry since the respondents will be provided with an opportunity to explain each and every acquisition of their assets and their income and expenditure during the check period during the investigation hence it was not necessary to provide this opportunity before the registration of an fir through a preliminary enquiry since there would have been a risk of tampering with or destruction of evidence by the accused persons vi the investigating officer has no duty to call for any explanation from the accused in relation to their assets before registering an fir against them since doing so would further lengthen the proceeding in any case such an opportunity is available to the accused persons at the stage of trial this principle emerges from the judgments of this court in k veeraswami 16 2014 2 scc 1 paras 31 35 37 39 83 86 89 92 93 96 101 105 106 107 111 112 114 119 and 120 17 2019 19 scc 87 paras 33 34 18 rc ma1 2016a 0019 cbl acb chennai 9 part c v union of india19 k veeraswami union of india and another v w n chadha20 state of maharashtra v lshwar piraji kalpatri21 narendar g goel v state of maharashtra22 and samaj parivarthan samudhaya v state of karnataka23 vii the fir has been registered against the second respondent under section 109 of the ipc as an abettor being in a fiduciary relationship with the first respondent as her spouse as such no consent of the speaker was required before the registration of the fir against the second respondent a general consent has been accorded to the cbi by the state of tamil nadu24 under section 6 of the delhi special police establishment act 194625 for the offences under the pc act which have been notified under section 3 of the dspe act the first respondent is an officer of the union government serving in the irs viii while hearing a petition seeking the quashing of an fir the high court has to consider the contents of the fir and whether the allegations made in it prima facie constitute an offence this is a settled principle reiterated recently by this court in neeharika infrastructure pvt ltd v state of maharashtra and others26 neeharika infrastructure in the present case the high court has gone beyond the scope of its powers and 19 1991 3 scc 655 para 75 20 1993 supp 4 scc 260 paras 90 98 21 1996 1 scc 542 paras 16 17 22 2009 6 scc 65 paras 11 16 23 2012 7 scc 407 paras 49 50 and 60 24 notification dated 2 july 1992 25 dspe act 26 2021 scc online sc 315 paras 36 37 46 50 51 57 and 80 xii xviii 10 part c conducted a mini trial while considering the evidence put forward by the respondents in order to quash the fir ix the high court has erred in relying upon the income tax returns and other documents filed by the respondents while quashing the fir since their veracity as lawful sources of income will have to be determined during the investigation which has been ongoing for more than two years the decision of this court in state of karnataka v j jayalalitha27 j jayalalitha reiterates this principle x the high court has solely relied on the documents filed by the respondents while calculating their income expenditure and value of assets to hold that they did not possess any disproportionate assets however no explanation has been provided about why the calculations done by the cbi resulting in the filing of the fir and during its subsequent investigation should be overlooked in favor of the respondents documents and xi pursuant to the stay granted by this court of the impugned judgment of the high court while issuing notice in the present proceedings the investigation has resumed and is nearly complete nearly 140 witnesses have been examined and 7500 documents have been obtained and it has been stated that the investigation would be completed within a period of two to three months 27 2017 6 scc 263 11 part c 10 mr siddharth luthra and mr siddharth dave senior counsel appearing on behalf of the respondents opposed the submissions and urged that i the telangana high court had jurisdiction to entertain the writ petition since a no assets of the respondents are located in the state of tamil nadu while many of the properties are located in the state of andhra pradesh the jurisdiction of the high court under article 226 of the constitution should be exercised liberally while quashing an fir in order to prevent the abuse of process of law this finds support in the judgments of this court in shanti devi alia shanti mishra v union of india28 navinchandra n majithia v state of maharashtra29 pepsi foods ltd v special judicial magistrate30 and kapil agarwal v sanjay sharma31 and b in any case cbi admitted to the jurisdiction of the telangana high court when it did not challenge its initial order dated 24 september 2019 admitting the respondents writ petition ii in view of the decision of this court in vineet narain v union of india32 vineet narain the provisions of the cbi manual must be followed strictly by the cbi this has been reiterated in shashikant v cbi33 28 2020 10 scc 766 para 33 29 2000 7 scc 640 paras 16 18 and 22 30 1998 5 scc 749 para 29 31 2021 5 scc 524 paras 18 18 2 32 1998 1 scc 226 para 58 12 33 2007 1 scc 630 paras 9 11 19 and 25 12 part c shashikant cbi v ashok kumar aggarwal34 ashok kumar aggarwal and state of jharkhand v lalu prasad yadav35 iii according to para 9 1 of the cbi manual a preliminary enquiry must be conducted before an fir is registered in order to collect sufficient material which prima facie establishes the commission of an offence this is emphasized in the judgments of this court in shashikant supra and nirmal singh kahlon v state of punjab36 nirmal singh kahlon iv a preliminary enquiry before the registration of an fir is a necessary requirement in cases of alleged corruption involving public servants including those of disproportionate assets since undue haste would lead to registration of frivolous and untenable complaints which could affect the careers of these officials the judgments of this court in yashwant sinha v cbi37 yashwant sinha charansingh v state of maharashtra38 charansingh p sirajuddin v state of madras39 p sirajuddin nirmal singh kahlon supra 40 and lalita kumari supra 41 support this formulation v the fir states that it was filed on the basis of source information received by the cbi acb chennai at 4 pm on 20 september 2017 following which the fir was registered and sent to the court of the principal special 34 2014 14 scc 295 paras 22 24 35 2017 8 scc 1 paras 67 69 36 2009 1 scc 441 37 2020 2 scc 338 paras 114 115 and 117 38 2021 5 scc 469 paras 10 15 39 1970 1 scc 595 para 17 40 2009 1 scc 441 para 30 41 paras 89 92 117 120 5 and 120 6 d 13 part c judge for cbi cases viiith additional city civil court chennai at 5 pm and was received there by 6 25 pm hence it is evident that no verification or preliminary enquiry was conducted before registering the fir vi the failure of cbi to conduct a preliminary enquiry has adversely affected the right of defence of the respondents since their right to explain their income expenditure assets has been taken away and an fir has been directly registered against them vii in accordance with the cbi manual only the director of cbi and not any of its designated officers has the power to register a case in terms of annexure 6a to the cbi manual or pass an order for a preliminary enquiry under para 14 39 of the cbi manual an investigation in a disproportionate assets case has to be completed within 18 months while it has been ongoing for more than two years in the present case viii in regard to the second respondent cbi has no authority to investigate a complaint since a while the second respondent may be a public servant under the pc act the consent for his prosecution can only be provided by the speaker and not the central government support for this proposition arises from the judgments of this court in p v narasimha rao v state cbi spe 42 and state of kerala v k ajith and others43 42 1998 4 scc 626 paras 98 99 43 criminal appeal no 698 of 2021 paras 24 33 36 39 and 61 64 14 part c b even according to the decision of this court in state of west bengal v committee for protection of democratic rights44 the cbi can exercise powers and jurisdiction under the pc act against an mla or an mp only on a direction of this court high court or on an order from the speaker c the cbi has no authority since under the dspe act i no notification has been issued by the central government specifying the offences against an mla to be investigated by the cbi section 3 of the dspe act ii no order has been passed by the central government extending the powers and jurisdiction of cbi in the state of telangana in respect of the offences specified under section 3 section 5 of the dspe act iii consent of the state government has not been obtained for the exercise of powers by the cbi in the state of telangana section 6 of the dspe act and iv in support of this reliance is placed upon judgments of this court in mayawati v union of india45 m balakrishna reddy v cbi46 central bureau of investigation v state of rajasthan47 and kazi lhendup dorji v cbi48 44 2010 3 scc 571 para 68 45 2012 8 scc 106 paras 29 30 46 2008 4 scc 409 para 19 47 1996 9 scc 735 para 26 48 1994 supp 2 scc 116 para 13 15 part c ix the fir also deserves to be quashed since a it does not differentiate in relation to the separate role of the two respondents and clubs the charges against them which vitiates their independent right of defense further the fir has been filed against the second respondent in chennai even though he has never held any public office there and no cause of action arises there and b the complaint is completely false since the respondents do not have any disproportionate assets in the check period but rather have an excess of income to support this the following chart has been filed along with the counter affidavit of the first respondent sl description amount as actual revised da in per fir in amount in rs rs rs a1 a2 1 10 81 692 disproportionate assets check period 01 04 2010 29 02 2016 1 statement b sl no 5 15 50 000 4 29 71 800 1 10 81 692 6 7 85 78 200 cbi has valued the construction cost of 25 03 492 sl 6 7 property of stm b as rs 5 15 50 000 rs 2 59 50 000 rs 2 56 00 000 even as per the stm b sl6 7 the value is taken from the report dated 11 03 2016 submitted by a1 to her department vide letter dated 14 03 2016 the total value of construction as per the said report is rs 4 14 21 800 16 part c rs 4 14 21 800 rs 15 50 000 rs 4 29 71 800 rs 5 15 50 000 rs 4 29 71 800 rs 85 78 200 2 stm b sl 26 8 00 000 8 00 000 25 03 492 double entry of 8 00 000 rs 8 00 000 in re bangalore property sold 17 03 492 during the check period admitted by cbi is wrongly shown as assets at the end of check period i e in stm c sl 9 3 stm b sl 31 10 00 000 10 00 000 17 03 492 double entry in re for 10 00 000 purchase and erection of one oscan escalator 7 03 492 at jubilee prop already part of overall valuation construction cost for stm b sl 6 7 4 stm c sl 9 72 50 000 1 00 00 000 7 03 492 arbitrary deduction in re 27 50 000 bangalore property see sr no 26 of stm 20 46 508 b was admittedly sold for a sale consideration of 1 cr but only rs 72 5 lks is shown as sale price in stm c rs 1 00 00 000 rs 72 50 000 rs 27 50 000 thus asset is not 20 46 508 disproportionate to income by x the high court has not solely relied upon the documents produced by the respondents while ignoring the material elicited by the cbi through its investigation the documents produced by the respondent income tax returns et al are lawful sources to determine the source of one s income 17 part c and can be relied upon while determining whether a public servant under section 13 1 e of the pc act has accumulated disproportionate assets in comparison to their lawful income hence the high court could have legitimately assessed the case of disproportionate assets against the respondents by relying on such documents in support of this proposition reliance is placed upon judgments of this court in harshendra kumar d v rebatilata koley49 suresh kumar goyal v state of u p 50 pooja ravinder devidasani v state of maharashtra51 kedari lal v state of m p 52 kedari lal and state of m p v mohanlal soni53 and xi the fir deserved to be quashed in terms of the guidelines enunciated in paragraph 102 1 3 5 6 and 7 of this court s judgment in state of haryana others v bhajan lal54 bhajan lal 11 the rival submissions now fall for our consideration based on the submissions this court is called upon to decide two questions i whether the cbi is mandatorily required to conduct a preliminary enquiry before the registration of an fir in every case involving claims of alleged corruption against public servants and ii independent of the first question whether the judgment of the high court to quash the fir can be sustained in the present case 49 2011 3 scc 351 paras 25 26 50 2019 14 scc 318 para 12 51 2014 16 scc 1 paras 15 17 23 27 28 and 30 52 2015 14 scc 505 paras 10 12 and 15 16 53 2000 6 scc 338 paras 4 6 and 11 54 1992 sup 1 scc 335 18 part d d whether a preliminary inquiry is mandatory before registering an fir d 1 precedents of this court 12 before proceeding with our analysis of the issue it is important to understand what previous judgements of this court have stated on the issue of whether cbi is required to conduct a preliminary enquiry before the registration of an fir especially in cases of alleged corruption against public servants 13 the first of these is a judgment of a two judge bench in p sirajuddin supra in which it was observed that before a public servant is charged with acts of dishonesty amounting to serious misdemeanor some suitable preliminary enquiry must be conducted in order to obviate incalculable harm to the reputation of that person justice g k mitter held that 17 before a public servant whatever be his status is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him there must be some suitable preliminary enquiry into the allegations by a responsible officer the lodging of such a report against a person specially one who like the appellant occupied the top position in a department even if baseless would do incalculable harm not only to the officer in particular but to the department he belonged to in general emphasis supplied 14 the above decision was followed by another two judge bench in nirmal singh kahlon supra where it was observed that in accordance with the cbi 19 part d manual the cbi may only be held to have established a prima facie case upon the completion of a preliminary enquiry justice s b sinha held thus 30 lodging of a first information report by cbi is governed by a manual it may hold a preliminary inquiry it has been given the said power in chapter vi of the cbi manual a prima facie case may be held to have been established only on completion of a preliminary enquiry 15 the most authoritative pronouncement of law emerges from the decision of a constitution bench in lalita kumari supra the issue before the court was whether a police officer is bound to register a first information report fir upon receiving any information relating to commission of a cognizable offence under section 154 of the code of criminal procedure 1973 or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same answering this question on behalf of the bench chief justice p sathasivam held that under section 154 of the code of criminal procedure 197355 a police officer need not conduct a preliminary enquiry and must register an fir when the information received discloses the commission of a cognizable offence specifically with reference to the provisions of the cbi manual the decision noted 89 besides the learned senior counsel relied on the special procedures prescribed under the cbi manual to be read into section 154 it is true that the concept of preliminary inquiry is contained in chapter ix of the crime manual of cbi however this crime manual is not a statute and has not been enacted by the legislature it is a set of administrative orders issued for internal guidance of the 55 crpc 20 part d cbi officers it cannot supersede the code moreover in the absence of any indication to the contrary in the code itself the provisions of the cbi crime manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the code of criminal procedure at this juncture it is also pertinent to submit that cbi is constituted under a special act namely the delhi special police establishment act 1946 and it derives its power to investigate from this act emphasis supplied however the court was also cognizant of the possible misuse of the powers under criminal law resulting in the registration of frivolous firs hence it formulated exceptions to the general rule that an fir must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence the constitution bench held 115 although we in unequivocal terms hold that section 154 of the code postulates the mandatory registration of firs on receipt of all cognizable offences yet there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time 117 in the context of offences relating to corruption this court in p sirajuddin p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 expressed the need for a preliminary inquiry before proceeding against public servants 119 therefore in view of various counterclaims regarding registration or non registration what is necessary is only that the information given to the police must disclose the commission of a cognizable offence in such a situation registration of an fir is mandatory however if no cognizable offence is made out in the information given 21 part d then the fir need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed but if the information given clearly mentions the commission of a cognizable offence there is no other option but to register an fir forthwith other considerations are not relevant at the stage of registration of fir such as whether the information is falsely given whether the information is genuine whether the information is credible etc these are the issues that have to be verified during the investigation of the fir at the stage of registration of fir what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence if after investigation the information given is found to be false there is always an option to prosecute the complainant for filing a false fir emphasis supplied the judgment provides the following conclusions 120 in view of the aforesaid discussion we hold 120 1 the registration of fir is mandatory under section 154 of the code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation 120 2 if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not 120 5 the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence 120 6 as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case the category of cases in which preliminary inquiry may be made are as under 22 part d d corruption cases the aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry emphasis supplied the constitution bench thus held that a preliminary enquiry is not mandatory when the information received discloses the commission of a cognizable offence even when it is conducted the scope of a preliminary enquiry is not to ascertain the veracity of the information but only whether it reveals the commission of a cognizable offence the need for a preliminary enquiry will depend on the facts and circumstances of each case as an illustration corruption cases fall in that category of cases where a preliminary enquiry may be made the use of the expression may be made goes to emphasize that holding a preliminary enquiry is not mandatory dwelling on the cbi manual the constitution bench held that i it is not a statute enacted by the legislature and ii it is a compendium of administrative orders for the internal guidance of the cbi 16 the judgment in lalita kumari supra was analyzed by a three judge bench of this court in yashwant sinha supra where the court refused to grant the relief of registration of an fir based on information submitted by the appellant informant in his concurring opinion justice k m joseph described that a barrier to granting the relief of registration of an fir against a public figure would be the observations of 23 part d this court in lalita kumari supra noting that a preliminary enquiry may be desirable before doing so justice joseph observed 108 para 120 6 of lalita kumari deals with the type of cases in which preliminary inquiry may be made corruption cases are one of the categories of cases where a preliminary inquiry may be conducted 110 in para 117 of lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 this court referred to the decision in p sirajuddin v state of madras p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 and took the view that in the context of offences related to corruption in the said decision the court has expressed a need for a preliminary inquiry before proceeding against public servants 112 in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 one of the contentions which was pressed before the court was that in certain situations preliminary inquiry is necessary in this regard attention of the court was drawn to cbi crime manual 114 the constitution bench in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 had before it the cbi crime manual it also considered the decision of this court in p sirajuddin p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 which declared the necessity for preliminary inquiry in offences relating to corruption therefore the petitioners may not be justified in approaching this court seeking the relief of registration of an fir and investigation on the same as such this is for the reason that one of the exceptions where immediate registration of fir may not be resorted to would be a case pointing fingers at a public figure and raising the allegation of corruption this court also has permitted preliminary inquiry when there is delay laches in initiating criminal prosecution for example over three 24 part d months a preliminary inquiry it is to be noticed in para 120 7 is to be completed within seven days emphasis supplied 17 the decision of a two judge bench in managipet supra thereafter has noted that while the decision in lalita kumari supra held that a preliminary enquiry was desirable in cases of alleged corruption that does not vest a right in the accused to demand a preliminary enquiry whether a preliminary enquiry is required or not will depends on the facts and circumstances of each case and it cannot be said to be mandatory requirement without which a case cannot be registered against the accused in corruption cases justice hemant gupta held thus 28 in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 the court has laid down the cases in which a preliminary inquiry is warranted more so to avoid an abuse of the process of law rather than vesting any right in favour of an accused herein the argument made was that if a police officer is doubtful about the veracity of an accusation he has to conduct a preliminary inquiry and that in certain appropriate cases it would be proper for such officer on the receipt of a complaint of a cognizable offence to satisfy himself that prima facie the allegations levelled against the accused in the complaint are credible 29 the court concluded that the registration of an fir is mandatory under section 154 of the code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation 30 it must be pointed out that this court has not held that a preliminary inquiry is a must in all cases a preliminary enquiry may be conducted pertaining to matrimonial disputes family disputes commercial offences medical negligence cases corruption cases etc the judgment of this court in lalita kumari lalita kumari v 25 part d state of u p 2014 2 scc 1 2014 1 scc cri 524 does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry 32 the scope and ambit of a preliminary inquiry being necessary before lodging an fir would depend upon the facts of each case there is no set format or manner in which a preliminary inquiry is to be conducted the objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint that is the test laid down in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 33 in the present case the fir itself shows that the information collected is in respect of disproportionate assets of the accused officer the purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints in furtherance of acting fairly and objectively herein relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence therefore once the officer recording the fir is satisfied with such disclosure he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him it cannot be said that the fir is liable to be quashed for the reason that the preliminary inquiry was not conducted the same can only be done if upon a reading of the entirety of an fir no offence is disclosed reference in this regard is made to a judgment of this court in state of haryana v bhajan lal state of haryana v bhajan lal 1992 supp 1 scc 335 1992 scc cri 426 wherein this court held inter alia that where the allegations made in the fir or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge 34 therefore we hold that the preliminary inquiry warranted in lalita kumari lalita kumari v state of u p 26 part d 2014 2 scc 1 2014 1 scc cri 524 is not required to be mandatorily conducted in all corruption cases it has been reiterated by this court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case there are no fixed parameters on which such inquiry can be said to be conducted therefore any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the fir is sufficient emphasis supplied 18 in charansingh supra the two judge bench was confronted with a challenge to a decision to hold a preliminary enquiry the court adverted to the acb manual in maharashtra and held that a statement provided by an individual in an open inquiry in the nature of a preliminary enquiry would not be confessional in nature and hence the individual cannot refuse to appear in such an inquiry on that basis justice m r shah writing for the two judge bench consisting also of one of us justice d y chandrachud held 11 however whether in a case of a complaint against a public servant regarding accumulating the assets disproportionate to his known sources of income which can be said to be an offence under section 13 1 e of the prevention of corruption act 1988 an enquiry at pre fir stage is permissible or not and or it is desirable or not if any decision is required the same is governed by the decision of this court in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 11 1 while considering the larger question whether police is duty bound to register an fir and or it is mandatory for registration of fir on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option discretion or latitude of conducting preliminary enquiry before registering fir this court in lalita kumari lalita kumari v state of u p 2014 2 scc 1 27 part d 2014 1 scc cri 524 has observed that it is mandatory to register an fir on receipt of information disclosing a cognizable offence and it is the general rule however while holding so this court has also considered the situations cases in which preliminary enquiry is permissible desirable while holding that the registration of fir is mandatory under section 154 if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with this court has carved out certain situations cases in which the preliminary enquiry is held to be permissible desirable before registering lodging of an fir it is further observed that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not it is observed that as to what type and in which cases the preliminary enquiry is to be conducted will depend upon the facts and circumstances of each case 14 in the context of offences relating to corruption in para 117 in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 this court also took note of the decision of this court in p sirajuddin v state of madras p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 in which case this court expressed the need for a preliminary enquiry before proceeding against public servants 15 1 thus an enquiry at pre fir stage is held to be permissible and not only permissible but desirable more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets properties disproportionate to his known sources of income after the enquiry enquiry at pre registration of fir stage preliminary enquiry if on the basis of the material collected during such enquiry it is found that the complaint is vexatious and or there is no substance at all in the complaint the fir shall not be lodged however if the material discloses prima facie a commission of the offence alleged the fir will be lodged and the criminal 28 part d proceedings will be put in motion and the further investigation will be carried out in terms of the code of criminal procedure therefore such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter fir would be registered therefore such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made 15 2 even as held by this court in cbi v tapan kumar singh cbi v tapan kumar singh 2003 6 scc 175 2003 scc cri 1305 a gd entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as fir in a given case and the police has the power and jurisdiction to investigate the same however in an appropriate case such as allegations of misconduct of corrupt practice by a public servant before lodging the first information report and further conducting the investigation if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not no fault can be found even at the stage of registering the fir what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence at this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence and not that he must be convinced or satisfied that a cognizable offence has been committed despite the proposition of law laid down by this court in a catena of decisions that at the stage of lodging the first information report the police officer need not be satisfied or convinced that a cognizable offence has been committed considering the observations made by this court in p sirajuddin p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 and considering the observations by this court in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 before lodging the fir an enquiry is held and or conducted after following the procedure as per maharashtra state anti corruption prohibition intelligence bureau manual it cannot be said that the same is illegal and or the police officer anti corruption bureau has no jurisdiction and or authority and or power at all to conduct such an enquiry at pre registration of fir stage emphasis supplied 29 part d 19 hence all these decisions do not mandate that a preliminary enquiry must be conducted before the registration of an fir in corruption cases an fir will not stand vitiated because a preliminary enquiry has not been conducted the decision in managipet supra dealt specifically with a case of disproportionate assets in that context the judgment holds that where relevant information regarding prima facie allegations disclosing a cognizable offence is available the officer recording the fir can proceed against the accused on the basis of the information without conducting a preliminary enquiry 20 this conclusion is also supported by the judgment of another constitution bench in k veeraswami supra the judgment was in context of section 5 1 e of the old prevention of corruption act 1947 which is similar to section 13 1 e of the pc act it was argued that i a public servant must be afforded an opportunity to explain the alleged disproportionate assets before an investigating officer ii this must then be included and explained by the investigating officer while filing the charge sheet and iii the failure to do so would render the charge sheet invalid rejecting this submission the constitution bench held that doing so would elevate the investigating officer to the role of an enquiry officer or a judge and that their role was limited only to collect material in order to ascertain whether the alleged offence has been committed by the public servant in his opinion for himself and justice venkatachaliah justice k jagannatha shetty held thus 75 since the legality of the charge sheet has been impeached we will deal with that contention also counsel laid great emphasis on the expression for which he cannot 30 part d satisfactorily account used in clause e of section 5 1 of the act he argued that that term means that the public servant is entitled to an opportunity before the investigating officer to explain the alleged disproportionality between assets and the known sources of income the investigating officer is required to consider his explanation and the charge sheet filed by him must contain such averment the failure to mention that requirement would vitiate the charge sheet and renders it invalid this submission if we may say so completely overlooks the powers of the investigating officer the investigating officer is only required to collect material to find out whether the offence alleged appears to have been committed in the course of the investigation he may examine the accused he may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him indeed fair investigation requires as rightly stated by mr a d giri learned solicitor general that the accused should not be kept in darkness he should be taken into confidence if he is willing to cooperate but to state that after collection of all material the investigating officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not would be elevating the investigating officer to the position of an enquiry officer or a judge the investigating officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused he just collects material from all sides and prepares a report which he files in the court as charge sheet emphasis supplied therefore since an accused public servant does not have a right to be afforded a chance to explain the alleged disproportionate assets to the investigating officer before the filing of a charge sheet a similar right cannot be granted to the accused before the filing of an fir by making a preliminary enquiry mandatory 31 part d 21 having revisited the precedents of this court it is now necessary to consider the provisions of the cbi manual d 2 cbi manual 22 in the judgment in vineet narain supra a three judge bench of this court noted that the provisions of the cbi manual must be followed by the officers of the c truncated reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 1045 of 2021 arising out of slp crl no 1597 of 2021 central bureau of investigation cbi and anr appellants versus thommandru hannah vijayalakshmi respondents t h vijayalakshmi and anr 1 j u d g m e n t dr dhananjaya y chandrachud j this judgment has been divided into sections to facilitate analysis they are a the appeal b factual and procedural history c counsel s submissions d whether a preliminary inquiry is mandatory before registering an fir d 1 precedents of this court d 2 cbi manual d 3 analysis e whether the fir should be quashed e 1 scope of review before the high court e 2 whether the fir is liable to be quashed in the present case f conclusion 2 part a a the appeal 1 the appeal arises from a judgment dated 11 february 2020 of a single judge of the high court for the state of telangana by which i a writ petition1 filed by the respondents under article 226 of the constitution of india was allowed and ii the first information report2 dated 20 september 2017 registered against the respondents was set aside together with proceedings taken up pursuant to the fir 2 the first respondent is a commissioner of income tax while the second respondent is her spouse the second respondent is a member of the legislative assembly3 and is a minister in the state government of andhra pradesh the fir4 dated 20 september 2017 has been registered against the first respondent for being in possession allegedly of assets disproportionate to her known sources of income the second respondent is alleged to have abetted the offence the fir has thus been registered for offences punishable under section 13 2 read with section 13 1 e of the prevention of corruption act 19885 and section 109 of the indian penal code 18606 the allegation is of possession of disproportionate assets to the tune of rs 1 10 81 692 which was 22 86 per cent of the income earned during the check period between 1 april 2010 to 29 february 2016 3 while quashing the fir the high court held that i the information about the respondents income can be ascertained from their known sources of income under 1 writ petition no 8552 of 2018 2 fir 3 mla 4 fir no rc mal 2017 a 0021 5 pc act 6 ipc 3 part b section 13 1 e of the pc act such as their income tax returns information submitted to their department under the central civil services conduct rules 19647 and affidavit filed under the representation of the people act 19518 and the rules under it ii to counter the veracity of the information from these sources the appellant central bureau of investigation9 should have conducted a preliminary enquiry under the central bureau of investigation crime manual 200510 before registration of the fir and iii on the basis of the information ascertained from these known sources of income the allegations against the respondents in the fir prima facie seem unsustainable this view of the high court has been called into question in these proceedings b factual and procedural history 4 since 1992 the first respondent is a civil servant of the indian revenue services11 and was working as commissioner of income tax audit ii tamil nadu pondicherry when the fir was registered against her she is presently working as commissioner of income tax audit at hyderabad the second respondent is the spouse of the first respondent and was also a civil servant working in the indian railway accounts services till 2009 at the time of the registration of the fir he was and continues to be at present an mla of the state of andhra pradesh and 7 ccs rules 8 rp act 9 cbi 10 cbi manual 11 irs 4 part b holds the post of the minister of education for the state of andhra pradesh he was also a member of the committees on assurances sc st welfare and public accounts 5 the fir was registered against the respondents by cbi s anti corruption branch12 in chennai on 20 september 2017 the fir noted that the check period was between 1 april 2010 and 29 february 2016 the fir records that it was registered on the basis of source information received by the cbi acb chennai on the same date at about 4 pm there are four tabulated statements in the fir statement a provides that the respondents assets at the beginning of the check period 1 april 2010 were in the amount of rs 1 35 26 066 while statement b indicates that their assets at the end of the check period 29 february 2016 were rs 6 90 51 066 hence their assets earned during the check period i e between 1 april 2010 to 29 february 2016 were alleged to be to the tune of rs 5 55 25 000 according to statement c the respondents income during the check period was rs 4 84 76 630 while according to statement d their expenditure during the check period was rs 40 33 322 hence the respondents are alleged to have acquired assets pecuniary advantage to the extent of rs 5 95 58 322 adding the assets rs 5 55 25 000 and expenditure rs 40 33 322 against an income of rs 4 84 76 630 earned during the check period therefore their disproportionate assets13 during the check period were computed at rs 1 10 81 692 which is 22 86 per cent of the total income earned by them the computation reflected in the fir is as follows 12 acb 13 calculated by adding the assets and expenditure during the check period and subtracting the income from it 5 part b calculation of disproportionate assets sl particulars of assets amount no rs a assets at the beginning of the check 13 526 066 period b assets at the end of the check period 69 051 066 c assets during the check period b a 55 525 000 d income during the check period 48 476 630 e expenditure during the check period 4 033 322 f assets expenditure income da 11 081 692 da percentage 22 86 on the basis of the fir dated 20 september 2017 the cbi acb chennai registered a case14 against the respondents for offences punishable under sections 13 2 read with 13 1 e of the pc act and section 109 of the ipc 6 on 5 march 2018 the respondents filed a writ petition before the telangana high court under article 226 of the constitution seeking quashing of the fir in their writ petition the respondents averred that i the fir is politically motivated since the second respondent belongs to a rival political party ii the appellant did not conduct a preliminary enquiry before registering the fir and iii the particulars in the fir did not constitute an offence and would not as they stand result in the respondents conviction further the petition pointed out inconsistencies in the fir where certain assets had been allegedly over valued while income had been under valued without any explanation hence the petition before the high court urged that the fir was liable to be quashed to support their contentions the respondents annexed their income tax returns immovable property declarations for the period 14 case rc 21 a 12017 6 part b between 2010 to 2017 made by the first respondent under the ccs rules affidavit filed by the second respondent under the rp act and rules thereunder in 2014 and letters under the ccs rules explaining the cost value of construction of their house 7 in response the appellant filed a counter affidavit before the telangana high court where it was stated inter alia that i the writ petition was filed belatedly two years after the registration of the fir ii in any case the writ petition should have been filed before the madras high court since the court of the principal special judge for cbi cases viiith additional city civil court chennai had jurisdiction over the case and the respondents were aware of this and the fir had also been registered by the cbi acb at chennai iii the fir had been registered on the basis of source information and the case was still under investigation iv the respondents would be provided a chance to explain their case during the investigation and there was no requirement to conduct preliminary enquiry before the registration of the fir and v the respondents income and assets cannot be conclusively ascertained from the documents annexed by them since their veracity has to be determined during the investigation hence the appellants urged that the fir could not be quashed 8 as noted earlier in this judgment the telangana high court allowed the respondents writ petition by its impugned judgement dated 11 february 2020 and quashed the fir and set aside all proceedings initiated pursuant to it the appellant cbi has now moved this court for challenging the decision of the high court 7 part c c counsel s submissions 9 assailing the judgment of the telangana high court ms aishwarya bhati additional solicitor general15 appearing on behalf of the cbi has urged the following submissions i the telangana high court did not have the jurisdiction to entertain the writ petition filed by the respondents since a the fir had been registered by the cbi acb at chennai and b it had been submitted to the principal special judge for cbi cases viiith additional city civil court chennai hence only the madras high court had jurisdiction to entertain the writ petition ii the cbi manual does not make it mandatory to conduct a preliminary enquiry before the registration of the fir and its provisions are directory iii a preliminary enquiry is only conducted when the information received is not sufficient to register a regular case however when the information available is adequate to register a regular case since it discloses the commission of a cognizable offence no preliminary enquiry is necessary this will depend on the facts and circumstances of each case and the preliminary enquiry cannot be made mandatory for all cases of alleged corruption this proposition finds support in the judgments of this court in 15 asg 8 part c lalita kumari v govt of up and others16 lalita kumari and the state of telangana v managipet17 managipet iv the fir was registered on the basis of reliable source information collected during the investigation of another case18 in which the first respondent was one of the accused during the investigation of that case cbi conducted searches at four places belonging to the first respondent during which documents were seized and she was also examined on the basis of such information and documents the fir was registered in the present case hence there was no need for a preliminary enquiry v there is also no need to conduct a preliminary enquiry since the respondents will be provided with an opportunity to explain each and every acquisition of their assets and their income and expenditure during the check period during the investigation hence it was not necessary to provide this opportunity before the registration of an fir through a preliminary enquiry since there would have been a risk of tampering with or destruction of evidence by the accused persons vi the investigating officer has no duty to call for any explanation from the accused in relation to their assets before registering an fir against them since doing so would further lengthen the proceeding in any case such an opportunity is available to the accused persons at the stage of trial this principle emerges from the judgments of this court in k veeraswami 16 2014 2 scc 1 paras 31 35 37 39 83 86 89 92 93 96 101 105 106 107 111 112 114 119 and 120 17 2019 19 scc 87 paras 33 34 18 rc ma1 2016a 0019 cbl acb chennai 9 part c v union of india19 k veeraswami union of india and another v w n chadha20 state of maharashtra v lshwar piraji kalpatri21 narendar g goel v state of maharashtra22 and samaj parivarthan samudhaya v state of karnataka23 vii the fir has been registered against the second respondent under section 109 of the ipc as an abettor being in a fiduciary relationship with the first respondent as her spouse as such no consent of the speaker was required before the registration of the fir against the second respondent a general consent has been accorded to the cbi by the state of tamil nadu24 under section 6 of the delhi special police establishment act 194625 for the offences under the pc act which have been notified under section 3 of the dspe act the first respondent is an officer of the union government serving in the irs viii while hearing a petition seeking the quashing of an fir the high court has to consider the contents of the fir and whether the allegations made in it prima facie constitute an offence this is a settled principle reiterated recently by this court in neeharika infrastructure pvt ltd v state of maharashtra and others26 neeharika infrastructure in the present case the high court has gone beyond the scope of its powers and 19 1991 3 scc 655 para 75 20 1993 supp 4 scc 260 paras 90 98 21 1996 1 scc 542 paras 16 17 22 2009 6 scc 65 paras 11 16 23 2012 7 scc 407 paras 49 50 and 60 24 notification dated 2 july 1992 25 dspe act 26 2021 scc online sc 315 paras 36 37 46 50 51 57 and 80 xii xviii 10 part c conducted a mini trial while considering the evidence put forward by the respondents in order to quash the fir ix the high court has erred in relying upon the income tax returns and other documents filed by the respondents while quashing the fir since their veracity as lawful sources of income will have to be determined during the investigation which has been ongoing for more than two years the decision of this court in state of karnataka v j jayalalitha27 j jayalalitha reiterates this principle x the high court has solely relied on the documents filed by the respondents while calculating their income expenditure and value of assets to hold that they did not possess any disproportionate assets however no explanation has been provided about why the calculations done by the cbi resulting in the filing of the fir and during its subsequent investigation should be overlooked in favor of the respondents documents and xi pursuant to the stay granted by this court of the impugned judgment of the high court while issuing notice in the present proceedings the investigation has resumed and is nearly complete nearly 140 witnesses have been examined and 7500 documents have been obtained and it has been stated that the investigation would be completed within a period of two to three months 27 2017 6 scc 263 11 part c 10 mr siddharth luthra and mr siddharth dave senior counsel appearing on behalf of the respondents opposed the submissions and urged that i the telangana high court had jurisdiction to entertain the writ petition since a no assets of the respondents are located in the state of tamil nadu while many of the properties are located in the state of andhra pradesh the jurisdiction of the high court under article 226 of the constitution should be exercised liberally while quashing an fir in order to prevent the abuse of process of law this finds support in the judgments of this court in shanti devi alia shanti mishra v union of india28 navinchandra n majithia v state of maharashtra29 pepsi foods ltd v special judicial magistrate30 and kapil agarwal v sanjay sharma31 and b in any case cbi admitted to the jurisdiction of the telangana high court when it did not challenge its initial order dated 24 september 2019 admitting the respondents writ petition ii in view of the decision of this court in vineet narain v union of india32 vineet narain the provisions of the cbi manual must be followed strictly by the cbi this has been reiterated in shashikant v cbi33 28 2020 10 scc 766 para 33 29 2000 7 scc 640 paras 16 18 and 22 30 1998 5 scc 749 para 29 31 2021 5 scc 524 paras 18 18 2 32 1998 1 scc 226 para 58 12 33 2007 1 scc 630 paras 9 11 19 and 25 12 part c shashikant cbi v ashok kumar aggarwal34 ashok kumar aggarwal and state of jharkhand v lalu prasad yadav35 iii according to para 9 1 of the cbi manual a preliminary enquiry must be conducted before an fir is registered in order to collect sufficient material which prima facie establishes the commission of an offence this is emphasized in the judgments of this court in shashikant supra and nirmal singh kahlon v state of punjab36 nirmal singh kahlon iv a preliminary enquiry before the registration of an fir is a necessary requirement in cases of alleged corruption involving public servants including those of disproportionate assets since undue haste would lead to registration of frivolous and untenable complaints which could affect the careers of these officials the judgments of this court in yashwant sinha v cbi37 yashwant sinha charansingh v state of maharashtra38 charansingh p sirajuddin v state of madras39 p sirajuddin nirmal singh kahlon supra 40 and lalita kumari supra 41 support this formulation v the fir states that it was filed on the basis of source information received by the cbi acb chennai at 4 pm on 20 september 2017 following which the fir was registered and sent to the court of the principal special 34 2014 14 scc 295 paras 22 24 35 2017 8 scc 1 paras 67 69 36 2009 1 scc 441 37 2020 2 scc 338 paras 114 115 and 117 38 2021 5 scc 469 paras 10 15 39 1970 1 scc 595 para 17 40 2009 1 scc 441 para 30 41 paras 89 92 117 120 5 and 120 6 d 13 part c judge for cbi cases viiith additional city civil court chennai at 5 pm and was received there by 6 25 pm hence it is evident that no verification or preliminary enquiry was conducted before registering the fir vi the failure of cbi to conduct a preliminary enquiry has adversely affected the right of defence of the respondents since their right to explain their income expenditure assets has been taken away and an fir has been directly registered against them vii in accordance with the cbi manual only the director of cbi and not any of its designated officers has the power to register a case in terms of annexure 6a to the cbi manual or pass an order for a preliminary enquiry under para 14 39 of the cbi manual an investigation in a disproportionate assets case has to be completed within 18 months while it has been ongoing for more than two years in the present case viii in regard to the second respondent cbi has no authority to investigate a complaint since a while the second respondent may be a public servant under the pc act the consent for his prosecution can only be provided by the speaker and not the central government support for this proposition arises from the judgments of this court in p v narasimha rao v state cbi spe 42 and state of kerala v k ajith and others43 42 1998 4 scc 626 paras 98 99 43 criminal appeal no 698 of 2021 paras 24 33 36 39 and 61 64 14 part c b even according to the decision of this court in state of west bengal v committee for protection of democratic rights44 the cbi can exercise powers and jurisdiction under the pc act against an mla or an mp only on a direction of this court high court or on an order from the speaker c the cbi has no authority since under the dspe act i no notification has been issued by the central government specifying the offences against an mla to be investigated by the cbi section 3 of the dspe act ii no order has been passed by the central government extending the powers and jurisdiction of cbi in the state of telangana in respect of the offences specified under section 3 section 5 of the dspe act iii consent of the state government has not been obtained for the exercise of powers by the cbi in the state of telangana section 6 of the dspe act and iv in support of this reliance is placed upon judgments of this court in mayawati v union of india45 m balakrishna reddy v cbi46 central bureau of investigation v state of rajasthan47 and kazi lhendup dorji v cbi48 44 2010 3 scc 571 para 68 45 2012 8 scc 106 paras 29 30 46 2008 4 scc 409 para 19 47 1996 9 scc 735 para 26 48 1994 supp 2 scc 116 para 13 15 part c ix the fir also deserves to be quashed since a it does not differentiate in relation to the separate role of the two respondents and clubs the charges against them which vitiates their independent right of defense further the fir has been filed against the second respondent in chennai even though he has never held any public office there and no cause of action arises there and b the complaint is completely false since the respondents do not have any disproportionate assets in the check period but rather have an excess of income to support this the following chart has been filed along with the counter affidavit of the first respondent sl description amount as actual revised da in per fir in amount in rs rs rs a1 a2 1 10 81 692 disproportionate assets check period 01 04 2010 29 02 2016 1 statement b sl no 5 15 50 000 4 29 71 800 1 10 81 692 6 7 85 78 200 cbi has valued the construction cost of 25 03 492 sl 6 7 property of stm b as rs 5 15 50 000 rs 2 59 50 000 rs 2 56 00 000 even as per the stm b sl6 7 the value is taken from the report dated 11 03 2016 submitted by a1 to her department vide letter dated 14 03 2016 the total value of construction as per the said report is rs 4 14 21 800 16 part c rs 4 14 21 800 rs 15 50 000 rs 4 29 71 800 rs 5 15 50 000 rs 4 29 71 800 rs 85 78 200 2 stm b sl 26 8 00 000 8 00 000 25 03 492 double entry of 8 00 000 rs 8 00 000 in re bangalore property sold 17 03 492 during the check period admitted by cbi is wrongly shown as assets at the end of check period i e in stm c sl 9 3 stm b sl 31 10 00 000 10 00 000 17 03 492 double entry in re for 10 00 000 purchase and erection of one oscan escalator 7 03 492 at jubilee prop already part of overall valuation construction cost for stm b sl 6 7 4 stm c sl 9 72 50 000 1 00 00 000 7 03 492 arbitrary deduction in re 27 50 000 bangalore property see sr no 26 of stm 20 46 508 b was admittedly sold for a sale consideration of 1 cr but only rs 72 5 lks is shown as sale price in stm c rs 1 00 00 000 rs 72 50 000 rs 27 50 000 thus asset is not 20 46 508 disproportionate to income by x the high court has not solely relied upon the documents produced by the respondents while ignoring the material elicited by the cbi through its investigation the documents produced by the respondent income tax returns et al are lawful sources to determine the source of one s income 17 part c and can be relied upon while determining whether a public servant under section 13 1 e of the pc act has accumulated disproportionate assets in comparison to their lawful income hence the high court could have legitimately assessed the case of disproportionate assets against the respondents by relying on such documents in support of this proposition reliance is placed upon judgments of this court in harshendra kumar d v rebatilata koley49 suresh kumar goyal v state of u p 50 pooja ravinder devidasani v state of maharashtra51 kedari lal v state of m p 52 kedari lal and state of m p v mohanlal soni53 and xi the fir deserved to be quashed in terms of the guidelines enunciated in paragraph 102 1 3 5 6 and 7 of this court s judgment in state of haryana others v bhajan lal54 bhajan lal 11 the rival submissions now fall for our consideration based on the submissions this court is called upon to decide two questions i whether the cbi is mandatorily required to conduct a preliminary enquiry before the registration of an fir in every case involving claims of alleged corruption against public servants and ii independent of the first question whether the judgment of the high court to quash the fir can be sustained in the present case 49 2011 3 scc 351 paras 25 26 50 2019 14 scc 318 para 12 51 2014 16 scc 1 paras 15 17 23 27 28 and 30 52 2015 14 scc 505 paras 10 12 and 15 16 53 2000 6 scc 338 paras 4 6 and 11 54 1992 sup 1 scc 335 18 part d d whether a preliminary inquiry is mandatory before registering an fir d 1 precedents of this court 12 before proceeding with our analysis of the issue it is important to understand what previous judgements of this court have stated on the issue of whether cbi is required to conduct a preliminary enquiry before the registration of an fir especially in cases of alleged corruption against public servants 13 the first of these is a judgment of a two judge bench in p sirajuddin supra in which it was observed that before a public servant is charged with acts of dishonesty amounting to serious misdemeanor some suitable preliminary enquiry must be conducted in order to obviate incalculable harm to the reputation of that person justice g k mitter held that 17 before a public servant whatever be his status is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him there must be some suitable preliminary enquiry into the allegations by a responsible officer the lodging of such a report against a person specially one who like the appellant occupied the top position in a department even if baseless would do incalculable harm not only to the officer in particular but to the department he belonged to in general emphasis supplied 14 the above decision was followed by another two judge bench in nirmal singh kahlon supra where it was observed that in accordance with the cbi 19 part d manual the cbi may only be held to have established a prima facie case upon the completion of a preliminary enquiry justice s b sinha held thus 30 lodging of a first information report by cbi is governed by a manual it may hold a preliminary inquiry it has been given the said power in chapter vi of the cbi manual a prima facie case may be held to have been established only on completion of a preliminary enquiry 15 the most authoritative pronouncement of law emerges from the decision of a constitution bench in lalita kumari supra the issue before the court was whether a police officer is bound to register a first information report fir upon receiving any information relating to commission of a cognizable offence under section 154 of the code of criminal procedure 1973 or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same answering this question on behalf of the bench chief justice p sathasivam held that under section 154 of the code of criminal procedure 197355 a police officer need not conduct a preliminary enquiry and must register an fir when the information received discloses the commission of a cognizable offence specifically with reference to the provisions of the cbi manual the decision noted 89 besides the learned senior counsel relied on the special procedures prescribed under the cbi manual to be read into section 154 it is true that the concept of preliminary inquiry is contained in chapter ix of the crime manual of cbi however this crime manual is not a statute and has not been enacted by the legislature it is a set of administrative orders issued for internal guidance of the 55 crpc 20 part d cbi officers it cannot supersede the code moreover in the absence of any indication to the contrary in the code itself the provisions of the cbi crime manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the code of criminal procedure at this juncture it is also pertinent to submit that cbi is constituted under a special act namely the delhi special police establishment act 1946 and it derives its power to investigate from this act emphasis supplied however the court was also cognizant of the possible misuse of the powers under criminal law resulting in the registration of frivolous firs hence it formulated exceptions to the general rule that an fir must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence the constitution bench held 115 although we in unequivocal terms hold that section 154 of the code postulates the mandatory registration of firs on receipt of all cognizable offences yet there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time 117 in the context of offences relating to corruption this court in p sirajuddin p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 expressed the need for a preliminary inquiry before proceeding against public servants 119 therefore in view of various counterclaims regarding registration or non registration what is necessary is only that the information given to the police must disclose the commission of a cognizable offence in such a situation registration of an fir is mandatory however if no cognizable offence is made out in the information given 21 part d then the fir need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed but if the information given clearly mentions the commission of a cognizable offence there is no other option but to register an fir forthwith other considerations are not relevant at the stage of registration of fir such as whether the information is falsely given whether the information is genuine whether the information is credible etc these are the issues that have to be verified during the investigation of the fir at the stage of registration of fir what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence if after investigation the information given is found to be false there is always an option to prosecute the complainant for filing a false fir emphasis supplied the judgment provides the following conclusions 120 in view of the aforesaid discussion we hold 120 1 the registration of fir is mandatory under section 154 of the code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation 120 2 if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not 120 5 the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence 120 6 as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case the category of cases in which preliminary inquiry may be made are as under 22 part d d corruption cases the aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry emphasis supplied the constitution bench thus held that a preliminary enquiry is not mandatory when the information received discloses the commission of a cognizable offence even when it is conducted the scope of a preliminary enquiry is not to ascertain the veracity of the information but only whether it reveals the commission of a cognizable offence the need for a preliminary enquiry will depend on the facts and circumstances of each case as an illustration corruption cases fall in that category of cases where a preliminary enquiry may be made the use of the expression may be made goes to emphasize that holding a preliminary enquiry is not mandatory dwelling on the cbi manual the constitution bench held that i it is not a statute enacted by the legislature and ii it is a compendium of administrative orders for the internal guidance of the cbi 16 the judgment in lalita kumari supra was analyzed by a three judge bench of this court in yashwant sinha supra where the court refused to grant the relief of registration of an fir based on information submitted by the appellant informant in his concurring opinion justice k m joseph described that a barrier to granting the relief of registration of an fir against a public figure would be the observations of 23 part d this court in lalita kumari supra noting that a preliminary enquiry may be desirable before doing so justice joseph observed 108 para 120 6 of lalita kumari deals with the type of cases in which preliminary inquiry may be made corruption cases are one of the categories of cases where a preliminary inquiry may be conducted 110 in para 117 of lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 this court referred to the decision in p sirajuddin v state of madras p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 and took the view that in the context of offences related to corruption in the said decision the court has expressed a need for a preliminary inquiry before proceeding against public servants 112 in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 one of the contentions which was pressed before the court was that in certain situations preliminary inquiry is necessary in this regard attention of the court was drawn to cbi crime manual 114 the constitution bench in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 had before it the cbi crime manual it also considered the decision of this court in p sirajuddin p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 which declared the necessity for preliminary inquiry in offences relating to corruption therefore the petitioners may not be justified in approaching this court seeking the relief of registration of an fir and investigation on the same as such this is for the reason that one of the exceptions where immediate registration of fir may not be resorted to would be a case pointing fingers at a public figure and raising the allegation of corruption this court also has permitted preliminary inquiry when there is delay laches in initiating criminal prosecution for example over three 24 part d months a preliminary inquiry it is to be noticed in para 120 7 is to be completed within seven days emphasis supplied 17 the decision of a two judge bench in managipet supra thereafter has noted that while the decision in lalita kumari supra held that a preliminary enquiry was desirable in cases of alleged corruption that does not vest a right in the accused to demand a preliminary enquiry whether a preliminary enquiry is required or not will depends on the facts and circumstances of each case and it cannot be said to be mandatory requirement without which a case cannot be registered against the accused in corruption cases justice hemant gupta held thus 28 in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 the court has laid down the cases in which a preliminary inquiry is warranted more so to avoid an abuse of the process of law rather than vesting any right in favour of an accused herein the argument made was that if a police officer is doubtful about the veracity of an accusation he has to conduct a preliminary inquiry and that in certain appropriate cases it would be proper for such officer on the receipt of a complaint of a cognizable offence to satisfy himself that prima facie the allegations levelled against the accused in the complaint are credible 29 the court concluded that the registration of an fir is mandatory under section 154 of the code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation 30 it must be pointed out that this court has not held that a preliminary inquiry is a must in all cases a preliminary enquiry may be conducted pertaining to matrimonial disputes family disputes commercial offences medical negligence cases corruption cases etc the judgment of this court in lalita kumari lalita kumari v 25 part d state of u p 2014 2 scc 1 2014 1 scc cri 524 does not state that proceedings cannot be initiated against an accused without conducting a preliminary inquiry 32 the scope and ambit of a preliminary inquiry being necessary before lodging an fir would depend upon the facts of each case there is no set format or manner in which a preliminary inquiry is to be conducted the objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint that is the test laid down in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 33 in the present case the fir itself shows that the information collected is in respect of disproportionate assets of the accused officer the purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints in furtherance of acting fairly and objectively herein relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence therefore once the officer recording the fir is satisfied with such disclosure he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him it cannot be said that the fir is liable to be quashed for the reason that the preliminary inquiry was not conducted the same can only be done if upon a reading of the entirety of an fir no offence is disclosed reference in this regard is made to a judgment of this court in state of haryana v bhajan lal state of haryana v bhajan lal 1992 supp 1 scc 335 1992 scc cri 426 wherein this court held inter alia that where the allegations made in the fir or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge 34 therefore we hold that the preliminary inquiry warranted in lalita kumari lalita kumari v state of u p 26 part d 2014 2 scc 1 2014 1 scc cri 524 is not required to be mandatorily conducted in all corruption cases it has been reiterated by this court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case there are no fixed parameters on which such inquiry can be said to be conducted therefore any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the fir is sufficient emphasis supplied 18 in charansingh supra the two judge bench was confronted with a challenge to a decision to hold a preliminary enquiry the court adverted to the acb manual in maharashtra and held that a statement provided by an individual in an open inquiry in the nature of a preliminary enquiry would not be confessional in nature and hence the individual cannot refuse to appear in such an inquiry on that basis justice m r shah writing for the two judge bench consisting also of one of us justice d y chandrachud held 11 however whether in a case of a complaint against a public servant regarding accumulating the assets disproportionate to his known sources of income which can be said to be an offence under section 13 1 e of the prevention of corruption act 1988 an enquiry at pre fir stage is permissible or not and or it is desirable or not if any decision is required the same is governed by the decision of this court in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 11 1 while considering the larger question whether police is duty bound to register an fir and or it is mandatory for registration of fir on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option discretion or latitude of conducting preliminary enquiry before registering fir this court in lalita kumari lalita kumari v state of u p 2014 2 scc 1 27 part d 2014 1 scc cri 524 has observed that it is mandatory to register an fir on receipt of information disclosing a cognizable offence and it is the general rule however while holding so this court has also considered the situations cases in which preliminary enquiry is permissible desirable while holding that the registration of fir is mandatory under section 154 if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with this court has carved out certain situations cases in which the preliminary enquiry is held to be permissible desirable before registering lodging of an fir it is further observed that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not it is observed that as to what type and in which cases the preliminary enquiry is to be conducted will depend upon the facts and circumstances of each case 14 in the context of offences relating to corruption in para 117 in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 this court also took note of the decision of this court in p sirajuddin v state of madras p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 in which case this court expressed the need for a preliminary enquiry before proceeding against public servants 15 1 thus an enquiry at pre fir stage is held to be permissible and not only permissible but desirable more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets properties disproportionate to his known sources of income after the enquiry enquiry at pre registration of fir stage preliminary enquiry if on the basis of the material collected during such enquiry it is found that the complaint is vexatious and or there is no substance at all in the complaint the fir shall not be lodged however if the material discloses prima facie a commission of the offence alleged the fir will be lodged and the criminal 28 part d proceedings will be put in motion and the further investigation will be carried out in terms of the code of criminal procedure therefore such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter fir would be registered therefore such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made 15 2 even as held by this court in cbi v tapan kumar singh cbi v tapan kumar singh 2003 6 scc 175 2003 scc cri 1305 a gd entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as fir in a given case and the police has the power and jurisdiction to investigate the same however in an appropriate case such as allegations of misconduct of corrupt practice by a public servant before lodging the first information report and further conducting the investigation if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not no fault can be found even at the stage of registering the fir what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence at this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence and not that he must be convinced or satisfied that a cognizable offence has been committed despite the proposition of law laid down by this court in a catena of decisions that at the stage of lodging the first information report the police officer need not be satisfied or convinced that a cognizable offence has been committed considering the observations made by this court in p sirajuddin p sirajuddin v state of madras 1970 1 scc 595 1970 scc cri 240 and considering the observations by this court in lalita kumari lalita kumari v state of u p 2014 2 scc 1 2014 1 scc cri 524 before lodging the fir an enquiry is held and or conducted after following the procedure as per maharashtra state anti corruption prohibition intelligence bureau manual it cannot be said that the same is illegal and or the police officer anti corruption bureau has no jurisdiction and or authority and or power at all to conduct such an enquiry at pre registration of fir stage emphasis supplied 29 part d 19 hence all these decisions do not mandate that a preliminary enquiry must be conducted before the registration of an fir in corruption cases an fir will not stand vitiated because a preliminary enquiry has not been conducted the decision in managipet supra dealt specifically with a case of disproportionate assets in that context the judgment holds that where relevant information regarding prima facie allegations disclosing a cognizable offence is available the officer recording the fir can proceed against the accused on the basis of the information without conducting a preliminary enquiry 20 this conclusion is also supported by the judgment of another constitution bench in k veeraswami supra the judgment was in context of section 5 1 e of the old prevention of corruption act 1947 which is similar to section 13 1 e of the pc act it was argued that i a public servant must be afforded an opportunity to explain the alleged disproportionate assets before an investigating officer ii this must then be included and explained by the investigating officer while filing the charge sheet and iii the failure to do so would render the charge sheet invalid rejecting this submission the constitution bench held that doing so would elevate the investigating officer to the role of an enquiry officer or a judge and that their role was limited only to collect material in order to ascertain whether the alleged offence has been committed by the public servant in his opinion for himself and justice venkatachaliah justice k jagannatha shetty held thus 75 since the legality of the charge sheet has been impeached we will deal with that contention also counsel laid great emphasis on the expression for which he cannot 30 part d satisfactorily account used in clause e of section 5 1 of the act he argued that that term means that the public servant is entitled to an opportunity before the investigating officer to explain the alleged disproportionality between assets and the known sources of income the investigating officer is required to consider his explanation and the charge sheet filed by him must contain such averment the failure to mention that requirement would vitiate the charge sheet and renders it invalid this submission if we may say so completely overlooks the powers of the investigating officer the investigating officer is only required to collect material to find out whether the offence alleged appears to have been committed in the course of the investigation he may examine the accused he may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him indeed fair investigation requires as rightly stated by mr a d giri learned solicitor general that the accused should not be kept in darkness he should be taken into confidence if he is willing to cooperate but to state that after collection of all material the investigating officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not would be elevating the investigating officer to the position of an enquiry officer or a judge the investigating officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused he just collects material from all sides and prepares a report which he files in the court as charge sheet emphasis supplied therefore since an accused public servant does not have a right to be afforded a chance to explain the alleged disproportionate assets to the investigating officer before the filing of a charge sheet a similar right cannot be granted to the accused before the filing of an fir by making a preliminary enquiry mandatory 31 part d 21 having revisited the precedents of this court it is now necessary to consider the provisions of the cbi manual d 2 cbi manual 22 in the judgment in vineet narain supra a three judge bench of this court noted that the provisions of the cbi manual must be followed by the officers of the c truncated 444 2020_c a no 005720 005720 2021 karnataka rural infrastructure development limited civil appeal no 5721 trial court karnataka rural infrastructure development limited the high court 2019 11 03 5720 of 2021 5721 of 2021 deptt v r kirubakaran m p v premlal others v r basavaraju ors v shyam deptt v r kirubakaran m p v premlal india v harnam ors v shyam parishad v raj india v harnam reportable in the supreme court of india civil appellate jurisdiction civil appeal no 5720 of 2021 karnataka rural infrastructure appellant s development limited versus t p nataraja ors respondent s with civil appeal no 5721 of 2021 karnataka rural infrastructure appellant s development limited anr versus m c subramaniam reddy respondent s j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment and order dated 11 03 2019 passed by the high court of karnataka at bengaluru in regular first appeal rfa no 1674 of 2013 by which the high court has allowed the said appeal preferred by respondent no 1 herein 1 employee and has quashed and set aside the judgment and decree passed by the learned trial court consequently dismissing the suit filed by respondent no 1 herein original plaintiff declaring the date of birth of employee 24 01 1961 the original defendant karnataka rural infrastructure development limited hereinafter referred to as the original defendant appellant corporation has preferred the present appeal 2 feeling aggrieved and dissatisfied with the impugned judgment and order dated 05 11 2019 passed by the high court of karnataka at dharwad in writ petition no 109447 of 2019 s res by which the high court has partly allowed the said writ petition relying upon the judgment and order passed in rfa no 1674 of 2013 which is the subject matter of civil appeal no 5720 of 2021 arising out of slp no 2368 of 2020 and has directed the karnataka rural infrastructure development limited to reconsider the decision of original writ petitioner with respect to change of date of birth the original respondent karnataka rural infrastructure development limited has preferred civil appeal no 5721 of 2021 arising out of slp no 1062 of 2021 2 civil appeal no 5720 of 2021 3 the facts leading to the present appeal in nutshell are as under 3 1 that respondent no 1 herein original plaintiff was appointed with the appellant corporation in the year 1984 in the service record his date of birth was reflected as 04 01 1960 as per sslc marks card after the lapse of nearly 24 years respondent no 1 herein original plaintiff requested for change of date of birth from 04 01 1960 to 24 01 1961 that thereafter respondent no 1 filed a suit for declaration before additional city civil and sessions judge at bengalore to declare that his date of birth is 24 01 1961 the suit was opposed by the appellant corporation relying upon the karnataka state servants determination of age act 1974 hereinafter referred to as the act 1974 and resolution dated 17 05 1991 passed by the appellant corporation adopting the karnataka civil service rules and allied laws the said rule provided that the request for change of date of birth in the service record shall be made within a period of three years from the date of joining or within one year from commencement of the karnataka act no 22 of 1974 the suit 3 was also opposed on the ground of delay and laches on the part of respondent no 1 original plaintiff in requesting to change the date of birth relying upon section 5 2 of the act 1974 the learned trial court dismissed the suit vide judgment and decree dated 28 07 2013 3 2 feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial court dismissing the suit respondent no 1 original plaintiff preferred regular first appeal no 1674 of 2013 before the high court the high court by the impugned judgment and order dated 11 03 2019 has allowed the said appeal by observing that it was highly impossible that the plaintiff should have availed the remedy within three years from the date of joining of service and also observing that the resolution dated 17 05 1991 passed by the appellant corporation adopting the karnataka civil service rules and allied laws was not brought to notice of the plaintiff 3 3 feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court dated 11 03 2019 allowing the said appeal and quashing and setting aside the judgment and decree passed by the learned 4 trial court dismissing the suit preferred by respondent no 1 herein and consequently decreeing the suit and declaring the date of birth of respondent no 1 original plaintiff 24 01 1961 instead of 04 01 1960 recorded in the service record original defendant employer corporation has preferred the present appeal 4 shri gurudas s kannur learned senior advocate appearing on behalf of the appellant corporation has vehemently submitted in the facts and circumstances of the case more particularly when the request for change of date of birth was made after 24 years and dehors the statutory provisions the high court committed a grave error in decreeing the suit and granting the declaratory relief it is submitted that as mandated by section 5 2 of the act 1974 no such alteration to the date of birth to the advantage of a state servant be made unless the employee has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of the act 1974 whichever is later it is submitted that the act 1974 came to 5 be adopted by the appellant corporation in the year 1991 and therefore respondent no 1 original plaintiff ought to have made the request for change of date of birth at least within one year from 17 05 1991 i e when the resolution was passed by the appellant corporation adopting the act 1974 and allied laws it is submitted that in the present case respondent no 1 employee made the application for the first time vide notice dated 23 06 2007 i e after the lapse of 24 years since he joined the service and nearly after the lapse of 16 years from the date of adoption of enactment act 1974 by the appellant corporation 4 1 it is submitted that the high court ought to have appreciated that the ignorance of law cannot be an excuse it is submitted that being an employee in fact he was supposed to know the rules and regulations applicable to the employees of the corporation 4 2 it is submitted that in any case the high court ought to have non suited the employee on the ground of delay and laches as the request for change of date of birth was made after lapse of 16 years from the date of adoption of enactment act 1974 by appellant corporation 6 4 3 relying upon the decisions of this court in the cases of home deptt v r kirubakaran 1994 supp 1 scc 155 state of m p v premlal shrivas 2011 9 scc 664 life insurance corporation of india others v r basavaraju 2016 15 scc 781 and bharat coking coal limited and ors v shyam kishore singh 2020 3 scc 411 it is prayed to allow the present appeal 4 4 learned advocate appearing on behalf of the appellant corporation had fairly admitted that so far as respondent no 1 herein employee is concerned the impugned judgment and order passed by the high court has been implemented however as others suits are pending he has requested to decide the question of law so that the impugned judgment and order passed by the high court may not come in the way of corporation 5 shri ashok bannidinni learned advocate appearing on behalf of respondent no 1 original plaintiff has submitted that so far as respondent no 1 original plaintiff is concerned the impugned judgment and order passed by the high court has been implemented in the year 2019 and even thereafter he has attained the age of superannuation treating and 7 considering his date of birth as 24 01 1961 nothing further is required to be done in the present appeal and as such the present appeal has become infructuous so far as respondent no 1 original plaintiff is concerned 5 1 now so far as civil appeal no 5721 of 2021 arising out of slp no 1062 of 2020 is concerned it is submitted that even the said appeal has also become infructuous as after the impugned judgment and order dated 05 11 2019 passed by the high court in writ petition no 109447 of 2019 by which the high court has directed the appellant corporation to re consider the request of the writ petitioner respondent herein for change of date of birth in light of the judgment and order passed in rfa no 1670 of 2013 thereafter the appellant corporation reconsidered the application representation of the writ petitioner respondent herein and his prayer for change of date of birth came to be rejected against which even the writ petition was preferred before the learned single judge and the same has also been dismissed it is submitted that therefore even civil appeal no 5721 of 2021 arising out of slp no 1062 of 2020 has become infructuous 8 5 2 learned senior advocate appearing on behalf of appellant corporation is not disputing the aforesaid factual matrix 6 heard the learned counsel appearing on behalf of the appellant corporation and respondent no 1 employee 7 the dispute is with respect to change of date of birth in the service record the employees of the state government for the determination of the age are governed by the karnataka state servant determination of age act 1974 section 4 of the act 1974 provides for bar of alteration of age except under the act 1974 section 5 of the act 1974 provides alteration of age or date of birth of state servants which provides that subject to sub section 2 the state government may at any time after an inquiry alter the age and date of birth of a state servant as recorded or deemed to have been recorded in his service register or book or any other record of service sub section 2 of section 5 further provides that no such alteration to the advantage of a state servant shall be made unless he has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service 9 register or book or any other record of service or within one year from the date of commencement of act 1974 whichever is later section 6 of the act 1974 further provides that no court shall have jurisdiction to settle decide or deal with any question which is required to be decided under the act 1974 it also further provides that no decision under act 1974 shall be questioned in any court of law section 4 section 5 and section 6 which are relevant for our purpose are re produced herein below 4 bar of alteration of age except under the act notwithstanding anything contained in any law or any judgment decree or order of any court or other authority no alteration of the age or date of birth of a state servant as accepted and recorded or deemed to have been accepted and recorded in his service register or book or any other record of service under section 3 shall in so far as it relates to his conditions of service as such state servant be made except under section 5 5 alteration of age or date of birth of state servants 1 subject to subsection 2 the state government may at any time after an inquiry alter the age and date of birth of a state servant as recorded or deemed to have been recorded in his service register or book or any other record of service provided that no such alteration shall be made if the age and date of birth of a state servant has been accepted and recorded or deemed to have been accepted and recorded in the service register or book or any other record of service in pursuance of a decree of a civil court obtained by the state servant 1 after he became such servant 1 against the state government 1 inserted by act 22 of 1977 w e f 29 7 1977 10 provided further that no such alteration shall be made without giving the state servant concerned a reasonable opportunity of being heard 2 no such alteration to the advantage of a state servant shall be made unless he has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of this act whichever is later 6 bar of jurisdiction of courts 1 no court shall have jurisdiction to settle decide or deal with any question which is required to be decided under this act 2 no decision under this act shall be questioned in any court of law 8 so far as the appellant corporation is concerned they adopted the provisions of the act 1974 by resolution dated 17 05 1991 therefore as such the request for change of date of birth as per the act 1974 as adopted by the appellant corporation in the year 1991 was required to be made by respondent no 1 employee within a period of one year from 17 05 1991 being the employee of the appellant corporation however respondent no 1 employee made the request for change of date of birth vide notice dated 23 06 2007 i e after the lapse of 24 years since he joined the service and nearly after the lapse of 16 years from the date of adoption of enactment act 1974 by the appellant corporation the high court in the impugned judgment and 11 order has observed that nothing is on record that resolution dated 17 05 1991 adopting the act 1974 was brought to the notice of the employee and that therefore respondent no 1 employee might not be aware of the applicability of the act 1974 aforesaid cannot be accepted being the employee of the corporation he was supposed to know the rules and regulations applicable to the employees of the corporation ignorance of law cannot be an excuse to get out of the applicability of the statutory provisions 9 even otherwise and assuming that the reasoning given by the high court for the sake of convenience is accepted in that case also even respondent no 1 employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service at this stage few decisions of this court on the issue of correction of the date of birth are required to be referred to 9 1 in the case of home deptt v r kirubakaran supra it is observed and held as under 12 7 an application for correction of the date of birth should not be dealt with by the tribunal or the high court keeping in view only the public servant concerned it need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction inasmuch as others waiting for years below him for their respective promotions are affected in this process some are likely to suffer irreparable injury inasmuch as because of the correction of the date of birth the officer concerned continues in office in some cases for years within which time many officers who are below him in seniority waiting for their promotion may lose the promotion for ever 9 2 in the case of state of m p v premlal shrivas supra in paragraph 8 and 12 it is observed and held as under 8 it needs to be emphasised that in matters involving correction of date of birth of a government servant particularly on the eve of his superannuation or at the fag end of his career the court or the tribunal has to be circumspect cautious and careful while issuing direction for correction of date of birth recorded in the service book at the time of entry into any government service unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned as the case may be and a real injustice has been caused to the person concerned the court or the tribunal should be loath to issue a direction for correction of the service book time and again this court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service particularly beyond the time fixed by his employer he cannot claim as a matter of right the correction of his date of birth even if he has 13 good evidence to establish that the recorded date of birth is clearly erroneous no court or the tribunal can come to the aid of those who sleep over their rights see union of india v harnam singh 1993 2 scc 162 1993 scc l s 375 1993 24 atc 92 12 be that as it may in our opinion the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent notwithstanding the fact that there was no specific rule or order framed or made prescribing the period within which such application could be filed it is trite that even in such a situation such an application should be filed which can be held to be reasonable the application filed by the respondent 25 years after his induction into service by no standards can be held to be reasonable more so when not a feeble attempt was made to explain the said delay there is also no substance in the plea of the respondent that since rule 84 of the m p financial code does not prescribe the time limit within which an application is to be filed the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book 9 3 in the case of life insurance corporation of india others v r basavaraju supra it is observed as under 5 the law with regard to correction of date of birth has been time and again discussed by this court and held that once the date of birth is entered in the service record as per the educational certificates and accepted by the employee the same cannot be changed not only that this court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement 9 4 in the case of bharat coking coal limited and ors v shyam kishore singh supra of which one of us justice a s 14 bopanna was a party to the bench has observed and held in paragraph 9 10 as under 9 this court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable the learned additional solicitor general has in that regard relied on the decision in the case of state of maharashtra and anr v gorakhnath sitaram kamble 2010 14 scc 423 wherein a series of the earlier decisions of this court were taken note and was held as hereunder 16 the learned counsel for the appellant has placed reliance on the judgment of this court in u p madhyamik shiksha parishad v raj kumar agnihotri 2005 11 scc465 2006 scc l s 96 in this case this court has considered a number of judgments of this court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career 17 in another judgment in state of uttaranchal v pitamber dutt semwal 2005 11 scc 477 2006 scc l s 106 relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service while setting aside the judgment of the high court this court observed that the high court ought not to have interfered with the decision after almost three decades 19 these decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees therefore any correction at the fag end must be discouraged by the court the relevant portion of the judgment in home deptt v r kirubakaran 1994 supp 1 scc 155 1994 scc l s 449 1994 26 atc 828 reads as under scc pp 158 59 para 7 15 7 an application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service it need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction inasmuch as others waiting for years below him for their respective promotions are affected in this process some are likely to suffer irreparable injury inasmuch as because of the correction of the date of birth the officer concerned continues in office in some cases for years within which time many officers who are below him in seniority waiting for their promotion may lose their promotion forever according to us this is an important aspect which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth as such unless a clear case on the basis of materials which can be held to be conclusive in nature is made out by the respondent the court or the tribunal should not issue a direction on the basis of materials which make such claim only plausible before any such direction is issued the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and within the time fixed by any rule or order the onus is on the applicant to prove the wrong recording of his date of birth in his service book 10 this court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous the correction cannot be claimed as a matter of right in that regard in state of m p vs premlal shrivas supra it is held as hereunder 16 8 it needs to be emphasised that in matters involving correction of date of birth of a government servant particularly on the eve of his superannuation or at the fag end of his career the court or the tribunal has to be circumspect cautious and careful while issuing direction for correction of date of birth recorded in the service book at the time of entry into any government service unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned as the case may be and a real injustice has been caused to the person concerned the court or the tribunal should be loath to issue a direction for correction of the service book time and again this court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service particularly beyond the time fixed by his employer he cannot claim as a matter of right the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous no court or the tribunal can come to the aid of those who sleepover their rights see union of india v harnam singh 1993 2 scc 162 1993 scc l s 375 1993 24 atc 92 12 be that as it may in our opinion the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent notwithstanding the fact that there was no specific rule or order framed or made prescribing the period within which such application could be filed it is trite that even in such a situation such an application should be filed which can be held to be reasonable the application filed by the respondent 25 years after his induction into service by no standards can be held to 17 be reasonable more so when not a feeble attempt was made to explain the said delay there is also no substance in the plea of the respondent that since rule 84 of the m p financial code does not prescribe the time limit within which an application is to be filed the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book 10 considering the aforesaid decisions of this court the law on change of date of birth can be summarized as under i application for change of date of birth can only be as per the relevant provisions regulations applicable ii even if there is cogent evidence the same cannot be claimed as a matter of right iii application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and or when the employee is about to retire on attaining the age of superannuation 11 therefore applying the law laid down by this court in the aforesaid decisions the application of the respondent for change of date of birth was liable to be rejected on the 18 ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the high court is unsustainable and not tenable at law 12 however considering the fact that when the impugned judgment and order passed by the high court has been implemented and respondent no 1 has retired thereafter considering his date of birth as 24 01 1961 it is observed that the present judgment and order shall not affect respondent no 1 employee and we decide the question of law in terms of the above in favour of the appellant corporation with this civil appeal no 5720 of 2021 stands disposed of 13 so far as the civil appeal no 5721 of 2021 arising out of the slp no 1062 of 2020 is concerned it is true that while passing the impugned judgment and order the high court heavily relied upon the judgment in rfa no 1674 of 2013 subject matter of civil no 5720 of 2021 which also is not sustainable in law as observed hereinabove 19 however considering the fact that thereafter after the impugned judgment and order dated 05 11 2019 passed by the high court in w p no 109447 of 2019 directing the appellant corporation to consider the case of the original writ petitioner respondent herein in light of the decision in the case of rfa no 1674 of 2013 the case of the respondent came to be reconsidered and his prayer for change of date of birth came to be rejected on the ground of delay and laches and even thereafter also the fresh decision was challenged before the learned single judge and the learned single judge has also dismissed the subsequent writ petition therefore no further order is required to be passed in the present appeal and is accordingly disposed of however question of law is decided in favour of the appellant corporation as observed hereinabove j m r shah j a s bopanna new delhi september 21 2021 20 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 5720 of 2021 karnataka rural infrastructure appellant s development limited versus t p nataraja ors respondent s with civil appeal no 5721 of 2021 karnataka rural infrastructure appellant s development limited anr versus m c subramaniam reddy respondent s j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment and order dated 11 03 2019 passed by the high court of karnataka at bengaluru in regular first appeal rfa no 1674 of 2013 by which the high court has allowed the said appeal preferred by respondent no 1 herein 1 employee and has quashed and set aside the judgment and decree passed by the learned trial court consequently dismissing the suit filed by respondent no 1 herein original plaintiff declaring the date of birth of employee 24 01 1961 the original defendant karnataka rural infrastructure development limited hereinafter referred to as the original defendant appellant corporation has preferred the present appeal 2 feeling aggrieved and dissatisfied with the impugned judgment and order dated 05 11 2019 passed by the high court of karnataka at dharwad in writ petition no 109447 of 2019 s res by which the high court has partly allowed the said writ petition relying upon the judgment and order passed in rfa no 1674 of 2013 which is the subject matter of civil appeal no 5720 of 2021 arising out of slp no 2368 of 2020 and has directed the karnataka rural infrastructure development limited to reconsider the decision of original writ petitioner with respect to change of date of birth the original respondent karnataka rural infrastructure development limited has preferred civil appeal no 5721 of 2021 arising out of slp no 1062 of 2021 2 civil appeal no 5720 of 2021 3 the facts leading to the present appeal in nutshell are as under 3 1 that respondent no 1 herein original plaintiff was appointed with the appellant corporation in the year 1984 in the service record his date of birth was reflected as 04 01 1960 as per sslc marks card after the lapse of nearly 24 years respondent no 1 herein original plaintiff requested for change of date of birth from 04 01 1960 to 24 01 1961 that thereafter respondent no 1 filed a suit for declaration before additional city civil and sessions judge at bengalore to declare that his date of birth is 24 01 1961 the suit was opposed by the appellant corporation relying upon the karnataka state servants determination of age act 1974 hereinafter referred to as the act 1974 and resolution dated 17 05 1991 passed by the appellant corporation adopting the karnataka civil service rules and allied laws the said rule provided that the request for change of date of birth in the service record shall be made within a period of three years from the date of joining or within one year from commencement of the karnataka act no 22 of 1974 the suit 3 was also opposed on the ground of delay and laches on the part of respondent no 1 original plaintiff in requesting to change the date of birth relying upon section 5 2 of the act 1974 the learned trial court dismissed the suit vide judgment and decree dated 28 07 2013 3 2 feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial court dismissing the suit respondent no 1 original plaintiff preferred regular first appeal no 1674 of 2013 before the high court the high court by the impugned judgment and order dated 11 03 2019 has allowed the said appeal by observing that it was highly impossible that the plaintiff should have availed the remedy within three years from the date of joining of service and also observing that the resolution dated 17 05 1991 passed by the appellant corporation adopting the karnataka civil service rules and allied laws was not brought to notice of the plaintiff 3 3 feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court dated 11 03 2019 allowing the said appeal and quashing and setting aside the judgment and decree passed by the learned 4 trial court dismissing the suit preferred by respondent no 1 herein and consequently decreeing the suit and declaring the date of birth of respondent no 1 original plaintiff 24 01 1961 instead of 04 01 1960 recorded in the service record original defendant employer corporation has preferred the present appeal 4 shri gurudas s kannur learned senior advocate appearing on behalf of the appellant corporation has vehemently submitted in the facts and circumstances of the case more particularly when the request for change of date of birth was made after 24 years and dehors the statutory provisions the high court committed a grave error in decreeing the suit and granting the declaratory relief it is submitted that as mandated by section 5 2 of the act 1974 no such alteration to the date of birth to the advantage of a state servant be made unless the employee has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of the act 1974 whichever is later it is submitted that the act 1974 came to 5 be adopted by the appellant corporation in the year 1991 and therefore respondent no 1 original plaintiff ought to have made the request for change of date of birth at least within one year from 17 05 1991 i e when the resolution was passed by the appellant corporation adopting the act 1974 and allied laws it is submitted that in the present case respondent no 1 employee made the application for the first time vide notice dated 23 06 2007 i e after the lapse of 24 years since he joined the service and nearly after the lapse of 16 years from the date of adoption of enactment act 1974 by the appellant corporation 4 1 it is submitted that the high court ought to have appreciated that the ignorance of law cannot be an excuse it is submitted that being an employee in fact he was supposed to know the rules and regulations applicable to the employees of the corporation 4 2 it is submitted that in any case the high court ought to have non suited the employee on the ground of delay and laches as the request for change of date of birth was made after lapse of 16 years from the date of adoption of enactment act 1974 by appellant corporation 6 4 3 relying upon the decisions of this court in the cases of home deptt v r kirubakaran 1994 supp 1 scc 155 state of m p v premlal shrivas 2011 9 scc 664 life insurance corporation of india others v r basavaraju 2016 15 scc 781 and bharat coking coal limited and ors v shyam kishore singh 2020 3 scc 411 it is prayed to allow the present appeal 4 4 learned advocate appearing on behalf of the appellant corporation had fairly admitted that so far as respondent no 1 herein employee is concerned the impugned judgment and order passed by the high court has been implemented however as others suits are pending he has requested to decide the question of law so that the impugned judgment and order passed by the high court may not come in the way of corporation 5 shri ashok bannidinni learned advocate appearing on behalf of respondent no 1 original plaintiff has submitted that so far as respondent no 1 original plaintiff is concerned the impugned judgment and order passed by the high court has been implemented in the year 2019 and even thereafter he has attained the age of superannuation treating and 7 considering his date of birth as 24 01 1961 nothing further is required to be done in the present appeal and as such the present appeal has become infructuous so far as respondent no 1 original plaintiff is concerned 5 1 now so far as civil appeal no 5721 of 2021 arising out of slp no 1062 of 2020 is concerned it is submitted that even the said appeal has also become infructuous as after the impugned judgment and order dated 05 11 2019 passed by the high court in writ petition no 109447 of 2019 by which the high court has directed the appellant corporation to re consider the request of the writ petitioner respondent herein for change of date of birth in light of the judgment and order passed in rfa no 1670 of 2013 thereafter the appellant corporation reconsidered the application representation of the writ petitioner respondent herein and his prayer for change of date of birth came to be rejected against which even the writ petition was preferred before the learned single judge and the same has also been dismissed it is submitted that therefore even civil appeal no 5721 of 2021 arising out of slp no 1062 of 2020 has become infructuous 8 5 2 learned senior advocate appearing on behalf of appellant corporation is not disputing the aforesaid factual matrix 6 heard the learned counsel appearing on behalf of the appellant corporation and respondent no 1 employee 7 the dispute is with respect to change of date of birth in the service record the employees of the state government for the determination of the age are governed by the karnataka state servant determination of age act 1974 section 4 of the act 1974 provides for bar of alteration of age except under the act 1974 section 5 of the act 1974 provides alteration of age or date of birth of state servants which provides that subject to sub section 2 the state government may at any time after an inquiry alter the age and date of birth of a state servant as recorded or deemed to have been recorded in his service register or book or any other record of service sub section 2 of section 5 further provides that no such alteration to the advantage of a state servant shall be made unless he has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service 9 register or book or any other record of service or within one year from the date of commencement of act 1974 whichever is later section 6 of the act 1974 further provides that no court shall have jurisdiction to settle decide or deal with any question which is required to be decided under the act 1974 it also further provides that no decision under act 1974 shall be questioned in any court of law section 4 section 5 and section 6 which are relevant for our purpose are re produced herein below 4 bar of alteration of age except under the act notwithstanding anything contained in any law or any judgment decree or order of any court or other authority no alteration of the age or date of birth of a state servant as accepted and recorded or deemed to have been accepted and recorded in his service register or book or any other record of service under section 3 shall in so far as it relates to his conditions of service as such state servant be made except under section 5 5 alteration of age or date of birth of state servants 1 subject to subsection 2 the state government may at any time after an inquiry alter the age and date of birth of a state servant as recorded or deemed to have been recorded in his service register or book or any other record of service provided that no such alteration shall be made if the age and date of birth of a state servant has been accepted and recorded or deemed to have been accepted and recorded in the service register or book or any other record of service in pursuance of a decree of a civil court obtained by the state servant 1 after he became such servant 1 against the state government 1 inserted by act 22 of 1977 w e f 29 7 1977 10 provided further that no such alteration shall be made without giving the state servant concerned a reasonable opportunity of being heard 2 no such alteration to the advantage of a state servant shall be made unless he has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of this act whichever is later 6 bar of jurisdiction of courts 1 no court shall have jurisdiction to settle decide or deal with any question which is required to be decided under this act 2 no decision under this act shall be questioned in any court of law 8 so far as the appellant corporation is concerned they adopted the provisions of the act 1974 by resolution dated 17 05 1991 therefore as such the request for change of date of birth as per the act 1974 as adopted by the appellant corporation in the year 1991 was required to be made by respondent no 1 employee within a period of one year from 17 05 1991 being the employee of the appellant corporation however respondent no 1 employee made the request for change of date of birth vide notice dated 23 06 2007 i e after the lapse of 24 years since he joined the service and nearly after the lapse of 16 years from the date of adoption of enactment act 1974 by the appellant corporation the high court in the impugned judgment and 11 order has observed that nothing is on record that resolution dated 17 05 1991 adopting the act 1974 was brought to the notice of the employee and that therefore respondent no 1 employee might not be aware of the applicability of the act 1974 aforesaid cannot be accepted being the employee of the corporation he was supposed to know the rules and regulations applicable to the employees of the corporation ignorance of law cannot be an excuse to get out of the applicability of the statutory provisions 9 even otherwise and assuming that the reasoning given by the high court for the sake of convenience is accepted in that case also even respondent no 1 employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service at this stage few decisions of this court on the issue of correction of the date of birth are required to be referred to 9 1 in the case of home deptt v r kirubakaran supra it is observed and held as under 12 7 an application for correction of the date of birth should not be dealt with by the tribunal or the high court keeping in view only the public servant concerned it need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction inasmuch as others waiting for years below him for their respective promotions are affected in this process some are likely to suffer irreparable injury inasmuch as because of the correction of the date of birth the officer concerned continues in office in some cases for years within which time many officers who are below him in seniority waiting for their promotion may lose the promotion for ever 9 2 in the case of state of m p v premlal shrivas supra in paragraph 8 and 12 it is observed and held as under 8 it needs to be emphasised that in matters involving correction of date of birth of a government servant particularly on the eve of his superannuation or at the fag end of his career the court or the tribunal has to be circumspect cautious and careful while issuing direction for correction of date of birth recorded in the service book at the time of entry into any government service unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned as the case may be and a real injustice has been caused to the person concerned the court or the tribunal should be loath to issue a direction for correction of the service book time and again this court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service particularly beyond the time fixed by his employer he cannot claim as a matter of right the correction of his date of birth even if he has 13 good evidence to establish that the recorded date of birth is clearly erroneous no court or the tribunal can come to the aid of those who sleep over their rights see union of india v harnam singh 1993 2 scc 162 1993 scc l s 375 1993 24 atc 92 12 be that as it may in our opinion the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent notwithstanding the fact that there was no specific rule or order framed or made prescribing the period within which such application could be filed it is trite that even in such a situation such an application should be filed which can be held to be reasonable the application filed by the respondent 25 years after his induction into service by no standards can be held to be reasonable more so when not a feeble attempt was made to explain the said delay there is also no substance in the plea of the respondent that since rule 84 of the m p financial code does not prescribe the time limit within which an application is to be filed the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book 9 3 in the case of life insurance corporation of india others v r basavaraju supra it is observed as under 5 the law with regard to correction of date of birth has been time and again discussed by this court and held that once the date of birth is entered in the service record as per the educational certificates and accepted by the employee the same cannot be changed not only that this court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement 9 4 in the case of bharat coking coal limited and ors v shyam kishore singh supra of which one of us justice a s 14 bopanna was a party to the bench has observed and held in paragraph 9 10 as under 9 this court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable the learned additional solicitor general has in that regard relied on the decision in the case of state of maharashtra and anr v gorakhnath sitaram kamble 2010 14 scc 423 wherein a series of the earlier decisions of this court were taken note and was held as hereunder 16 the learned counsel for the appellant has placed reliance on the judgment of this court in u p madhyamik shiksha parishad v raj kumar agnihotri 2005 11 scc465 2006 scc l s 96 in this case this court has considered a number of judgments of this court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career 17 in another judgment in state of uttaranchal v pitamber dutt semwal 2005 11 scc 477 2006 scc l s 106 relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service while setting aside the judgment of the high court this court observed that the high court ought not to have interfered with the decision after almost three decades 19 these decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees therefore any correction at the fag end must be discouraged by the court the relevant portion of the judgment in home deptt v r kirubakaran 1994 supp 1 scc 155 1994 scc l s 449 1994 26 atc 828 reads as under scc pp 158 59 para 7 15 7 an application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service it need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction inasmuch as others waiting for years below him for their respective promotions are affected in this process some are likely to suffer irreparable injury inasmuch as because of the correction of the date of birth the officer concerned continues in office in some cases for years within which time many officers who are below him in seniority waiting for their promotion may lose their promotion forever according to us this is an important aspect which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth as such unless a clear case on the basis of materials which can be held to be conclusive in nature is made out by the respondent the court or the tribunal should not issue a direction on the basis of materials which make such claim only plausible before any such direction is issued the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and within the time fixed by any rule or order the onus is on the applicant to prove the wrong recording of his date of birth in his service book 10 this court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous the correction cannot be claimed as a matter of right in that regard in state of m p vs premlal shrivas supra it is held as hereunder 16 8 it needs to be emphasised that in matters involving correction of date of birth of a government servant particularly on the eve of his superannuation or at the fag end of his career the court or the tribunal has to be circumspect cautious and careful while issuing direction for correction of date of birth recorded in the service book at the time of entry into any government service unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned as the case may be and a real injustice has been caused to the person concerned the court or the tribunal should be loath to issue a direction for correction of the service book time and again this court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service particularly beyond the time fixed by his employer he cannot claim as a matter of right the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous no court or the tribunal can come to the aid of those who sleepover their rights see union of india v harnam singh 1993 2 scc 162 1993 scc l s 375 1993 24 atc 92 12 be that as it may in our opinion the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent notwithstanding the fact that there was no specific rule or order framed or made prescribing the period within which such application could be filed it is trite that even in such a situation such an application should be filed which can be held to be reasonable the application filed by the respondent 25 years after his induction into service by no standards can be held to 17 be reasonable more so when not a feeble attempt was made to explain the said delay there is also no substance in the plea of the respondent that since rule 84 of the m p financial code does not prescribe the time limit within which an application is to be filed the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book 10 considering the aforesaid decisions of this court the law on change of date of birth can be summarized as under i application for change of date of birth can only be as per the relevant provisions regulations applicable ii even if there is cogent evidence the same cannot be claimed as a matter of right iii application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and or when the employee is about to retire on attaining the age of superannuation 11 therefore applying the law laid down by this court in the aforesaid decisions the application of the respondent for change of date of birth was liable to be rejected on the 18 ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the high court is unsustainable and not tenable at law 12 however considering the fact that when the impugned judgment and order passed by the high court has been implemented and respondent no 1 has retired thereafter considering his date of birth as 24 01 1961 it is observed that the present judgment and order shall not affect respondent no 1 employee and we decide the question of law in terms of the above in favour of the appellant corporation with this civil appeal no 5720 of 2021 stands disposed of 13 so far as the civil appeal no 5721 of 2021 arising out of the slp no 1062 of 2020 is concerned it is true that while passing the impugned judgment and order the high court heavily relied upon the judgment in rfa no 1674 of 2013 subject matter of civil no 5720 of 2021 which also is not sustainable in law as observed hereinabove 19 however considering the fact that thereafter after the impugned judgment and order dated 05 11 2019 passed by the high court in w p no 109447 of 2019 directing the appellant corporation to consider the case of the original writ petitioner respondent herein in light of the decision in the case of rfa no 1674 of 2013 the case of the respondent came to be reconsidered and his prayer for change of date of birth came to be rejected on the ground of delay and laches and even thereafter also the fresh decision was challenged before the learned single judge and the learned single judge has also dismissed the subsequent writ petition therefore no further order is required to be passed in the present appeal and is accordingly disposed of however question of law is decided in favour of the appellant corporation as observed hereinabove j m r shah j a s bopanna new delhi september 21 2021 20 454 2019_w p c no 000060 2019 articles 14 the haryana backward classes reservation in services and admission in educational institutions act petitioners 2016 08 17 sawhney v union sawhney v union thakur v state non reportable in the supreme court of india civil original appellate jurisdiction writ petition civil no 60 of 2019 pichra warg kalyan mahasabha haryana regd anr petitioners versus the state of haryana anr respondents with civil appeal no 4952 of 2021 arising out of slp c no 21893 of 2018 civil appeal nos 4953 4954 of 2021 arising out of slp c nos 32168 32169 of 2018 j u d g e m e n t l nageswara rao j leave granted in slp c no 21893 of 2018 slp c nos 32168 32169 of 2018 1 writ petition c no 60 of 2019 has been filed under article 32 of the constitution of india for quashing notifications dated 17 08 2016 and 28 08 2018 issued by the first respondent as arbitrary and violative of articles 14 15 and 16 of the constitution of india a further direction is 1 pa ge sought for a fresh survey and verification of data for identification and specification of creamy layer as per the provisions of the haryana backward classes reservation in services and admission in educational institutions act 2016 hereinafter referred to as the 2016 act the petitioners have also sought for a direction to the respondents to provide reservation to backward classes in haryana under the 2016 act by considering the existing defined criteria of creamy layer by the national commission for backward classes or the criteria used by the state of haryana prior to the 2016 act 2 reservation in backward classes as recommended by the mandal commission was scrutinised by this court in indra sawhney v union of india1 hereinafter referred to as indra sawhney i in the said judgement this court recommended constitution of a permanent body at the central level and at the level of the states to deal with the inclusion under inclusion and over inclusion of groups in the lists of other backward classes of citizens this court directed state governments to identify creamy layer amongst the backward classes and exclude them from the purview of reservation pursuant to the directions issued in 1 1992 supp 3 scc 217 2 pa ge indra sawhney i the haryana second backward classes commission was constituted on 12 10 1993 the said commission was assigned the function of specifying the basis for excluding socially advanced persons creamy layer from the backward classes on 16 05 1995 the haryana second backward classes commission submitted its report recommending the criteria for excluding socially advanced persons sections creamy layer from the backward classes the state government accepted the recommendations of the commission and decided that the benefit of reservation shall not extend to persons sections mentioned in annexure a to the circular dated 07 06 1995 issued by the commissioner and secretary to government of haryana welfare and scheduled castes and backward classes department the said annexure a included the children of those who held constitutional posts who were class i officers of the all india central and state services direct recruits class ii officers of the central and state services direct recruits employees in public sector undertakings etc and personnel belonging to armed forces including para military forces excluding persons holding civil posts children of persons belonging to a family which owned more than the permissible land under the statute of haryana pertaining to ceiling on 3 pa ge land holdings were also covered under annexure a another category specified in annexure a was with respect to the children of persons with gross annual income of rs 1 lakh or above or possessing wealth above the exemption limit as prescribed in the wealth tax act 1957 for a period of three consecutive years lastly annexure a brought within its fold children of persons of all other listed categories who were not disentitled to the benefit of reservation but had income from other sources of wealth bringing them within the aforementioned income wealth criteria 3 on 31 08 2010 the financial commissioner and principal secretary to government of haryana welfare of scheduled castes backward classes department informed the relevant authorities that the state government had decided to raise income limit to rs 4 5 lakh for determining creamy layer amongst the backward classes under the income wealth criteria later the haryana backward classes reservation in services and admission in educational institutions act 2016 was enacted to provide for reservation in services and admission in educational institutions to the persons belonging to backward classes in the state of haryana section 5 of the 2016 act provides that no persons belonging to creamy layer amongst the 4 pa ge backward classes shall be considered for admission in educational institutions against the seats reserved for backward classes they shall also not be entitled to claim reservation for appointment in services under the state against posts reserved for backward classes section 5 2 of the act postulates that the government shall by notification after taking into consideration social economic and such other factors as deemed appropriate specify the criteria for exclusion and identification of persons belonging to the backward classes as creamy layer 4 in exercise of the powers conferred by the 2016 act the state government issued a notification on 17 08 2016 specifying the criteria for exclusion of creamy layer within the backward classes as per the said notification children of persons having gross annual income up to rs 3 lakh shall first of all get the benefit of reservation in services and admission in educational institutions the left out quota shall go to that class of backward classes of citizens who earn more than rs 3 lakh but up to rs 6 lakh per annum the sections of backward classes earning above rs 6 lakh per annum shall be considered as creamy layer under section 5 of the 2016 act 5 pa ge 5 students aspiring to be admitted to mbbs course for the academic year 2018 2019 in the quota for backward classes filed writ petitions in the high court of punjab and haryana challenging the notification dated 17 08 2016 the main grievance of the petitioners in the said writ petitions was the sub classification of backward classes with preference in reservation given to a particular section of a backward class group the high court by its judgement dated 07 08 2018 in cwp no 15731 of 2018 and connected matters set aside the notification dated 17 08 2016 on the ground that the sub classification of the backward classes is arbitrary and violative of article 14 of the constitution of india the high court directed the counselling of students to be held afresh on the basis of the earlier criteria existing prior to the 2016 act the state of haryana questioned the correctness of the judgement of the high court before this court in slp c no 21893 of 2018 the request made by the state to stay the judgement of the high court dated 07 08 2018 was declined by this court on 28 08 2018 6 on the same day the state government issued a notification after obtaining an opinion of the advocate general of haryana whereby the criteria for computing annual income for the purposes of the notification dated 6 pa ge 17 08 2016 was fixed as gross annual income which shall include income from all sources by the said notification dated 28 08 2018 all previous notifications and instructions which provided for a different mode of computing annual income stood overruled students who having qualified in neet 2018 and seeking admission to mbbs and bds courses in the backward classes quota filed cwp no 22055 of 2018 in the high court assailing the legality and validity of the notifications dated 17 08 2016 and 28 08 2018 the high court upheld both the notifications aggrieved by which slp c nos 32168 32169 of 2018 have been filed before this court as the question arising in the writ petition c no 60 of 2019 and the appeals arising from slp c no 21893 of 2018 and slp c nos 32168 32169 of 2018 are common all of them are disposed of together by this judgement 7 the point considered by the high court in cwp no 15731 of 2018 was restricted to the sub classification of a backward class group while fixing the criteria for creamy layer by the notification dated 17 08 2016 apart from fixing the income criterion as rs 6 lakh for identifying and excluding the creamy layer the state government divided the remaining backward classes of citizens eligible for reservation into two groups on the basis of their annual 7 pa ge income the first group is of those persons who have gross annual income up to rs 3 lakh and the other comprising persons who have income between rs 3 lakh and rs 6 lakh according to the notification dated 17 08 2016 children of persons having gross annual income up to rs 3 lakh shall first be considered for the benefit of reservation in services and admission in educational institutions the left over quota shall then be filled up by the children of those whose annual income is between rs 3 lakh and rs 6 lakh the contention on behalf of the state government that such division was made to ensure that the benefit of reservation reached the most marginalised amongst the backward classes was rejected by the high court the high court was of the opinion that this sub classification is arbitrary and would result in depriving the benefit of reservation to persons belonging to backward classes who have income between rs 3 lakh to rs 6 lakh after examining the material produced by the government the high court criticised the state backward classes commission for not examining and validating data to establish social backwardness of the backward classes by making it clear that fixing rs 6 lakh as the income for determining the creamy layer amongst the backward classes was not in question before it the high court in its 8 pa ge judgement dated 07 08 2018 concluded that the sub classification giving preference to those with annual income less than rs 3 lakh is arbitrary 8 in its judgement dated 31 08 2018 in cwp no 22055 of 2018 the high court upheld the fixation of the income limit of rs 6 lakh per year as criteria for determining creamy layer amongst the backward classes after clarifying that the earlier notifications issued by the state government on 07 06 1995 09 08 2000 and 31 08 2010 had been superseded by the 2016 act the high court was of the opinion that fixing the criteria for creamy layer is in the interests of persons belonging to the marginalised sections of backward classes who actually need the benefit of reservation in so far as the notification dated 28 08 2018 is concerned the high court held that the state government had jurisdiction under the 2016 act to take into account the gross annual income from all sources for the purpose of arriving at the criteria for determining creamy layer as both the notifications dated 17 08 2016 and 28 08 2018 are in the larger interests of those backward classes who require the benefit of reservation the high court dismissed the writ petition 9 pa ge 9 we have heard mr siddharth dave learned senior counsel appearing for the petitioners and mr arun bhardwaj learned senior counsel appearing for the respondent state the principal contention of the petitioners is that the notifications dated 17 8 2016 and 28 08 2018 are contrary to the law laid down by this court in indra sawhney i as economic criterion cannot be the sole criterion for identifying creamy layer it was contended on behalf of the petitioners that the notifications are violative of section 5 of the 2016 act according to which social economic and other factors are to be taken into account for specifying the criteria for exclusion and identification of persons belonging to the backward classes as creamy layer the learned senior counsel for the petitioners submitted that the sub classification of the backward classes on the basis of income by the notification dated 17 08 2016 resulted in precluding one section of backward class of persons whose annual income was between rs 3 lakh to rs 6 lakh from the benefit of reservation computation of gross income by including income from all sources according to the notification dated 28 08 2018 is contrary to the notifications issued by the government of india as well as the notifications that were issued by the state government prior to the 2016 10 pa ge act according to the petitioners clubbing of salary income and agricultural income to compute the gross income results in exclusion of a large number of eligible sections of backward classes from seeking reservation in appointment to public services and admission to educational institutions 10 the submissions made on behalf of the petitioners were countered by the learned senior counsel appearing for the state who submitted that the notifications have been issued strictly in accordance with the judgement in indra sawhney i on behalf of the state it was contended that a detailed district wise survey was done by the commission to collect information relating to social and economic backwardness of all the backward classes before issuing the impugned notifications much stress was laid by the state on the laudable object that is achieved by the two notifications in question the sub classification amongst the backward classes is to ensure that people with lower income amongst backward classes get the benefit of reservation as they need a helping hand more than the others who fall within the higher income bracket of rs 3 lakh to rs 6 lakh the notification dated 28 08 2018 is also for the purpose of providing the benefit of reservation to the marginalised sections of backward classes as such of those sections 11 pa ge having a higher income should not get primacy and occupy the majority of the reserved seats posts 11 the notification dated 17 08 2016 was issued in exercise of the power conferred on the state government under the 2016 act section 5 2 of the 2016 act clearly provides that social economic and other factors have to be taken into account for the purpose of determining and excluding the creamy layer within a backward class it is relevant to mention that the notification that was issued on 07 06 1995 was in tune with the judgement of this court in indra sawhney i the said notification excluded certain persons who held constitutional posts and those who were in employment of the state and the centre in higher posts from the benefit of reservation in addition the social advancement of other categories was taken into account for the purpose of including such categories in creamy layer strangely by the notification dated 17 08 2016 the identification of creamy layer amongst backward classes was restricted only to the basis of economic criterion in clear terms this court held in indra sawhney i that the basis of exclusion of creamy layer cannot be merely economic j jeevan reddy in para 792 of the judgement in indra sawhney i held as follows 12 pa ge 792 in our opinion it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class a backward class the very concept of a class denotes a number of persons having certain common traits which distinguish them from the others in a backward class under clause 4 of article 16 if the connecting link is the social backwardness it should broadly be the same in a given class if some of the members are far too advanced socially which in the context necessarily means economically and may also mean educationally the connecting thread between them and the remaining class snaps they would be misfits in the class after excluding them alone would the class be a compact class in fact such exclusion benefits the truly backward difficulty however really lies in drawing the line how and where to draw the line for while drawing the line it should be ensured that it does not result in taking away with one hand what is given by the other the basis of exclusion should not merely be economic unless of course the economic advancement is so high that it necessarily means social advancement let us illustrate the point a member of backward class say a member of carpenter caste goes to middle east and works there as a carpenter if you take his annual income in rupees it would be fairly high from the indian standard is he to be excluded from the backward class are his children in india to be deprived of the benefit of article 16 4 situation may however be different if he rises so high economically as to become say a factory owner himself in such a situation his social status also rises he himself would be in a position to provide employment to others in such a case his income is merely a measure of his social status even otherwise there 13 pa ge are several practical difficulties too in imposing an income ceiling for example annual income of rs 36 000 may not count for much in a city like bombay delhi or calcutta whereas it may be a handsome income in rural india anywhere the line to be drawn must be a realistic one another question would be should such a line be uniform for the entire country or a given state or should it differ from rural to urban areas and so on further income from agriculture may be difficult to assess and therefore in the case of agriculturists the line may have to be drawn with reference to the extent of holding while the income of a person can be taken as a measure of his social advancement the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other the income limit must be such as to mean and signify social advancement at the same time it must be recognised that there are certain positions the occupants of which can be treated as socially advanced without any further enquiry for example if a member of a designated backward class becomes a member of ias or ips or any other all india service his status is society social status rises he is no longer socially disadvantaged his children get full opportunity to realise their potential they are in no way handicapped in the race of life his salary is also such that he is above want it is but logical that in such a situation his children are not given the benefit of reservation for by giving them the benefit of reservation other disadvantaged members of that backward class may be deprived of that benefit it is then argued for the respondents that one swallow doesn t make the summer and that merely because a few members of a caste or class become socially advanced the class caste as such does not cease to be backward it is pointed out that clause 4 of 14 pa ge article 16 aims at group backwardness and not individual backwardness while we agree that clause 4 aims at group backwardness we feel that exclusion of such socially advanced members will make the class a truly backward class and would more appropriately serve the purpose and object of clause 4 this discussion is confined to other backward classes only and has no relevance in the case of scheduled tribes and scheduled castes the following directions were issued in para 793 of the judgement 793 keeping in mind all these considerations we direct the government of india to specify the basis of exclusion whether on the basis of income extent of holding or otherwise of creamy layer this shall be done as early as possible but not exceeding four months on such specification persons falling within the net of exclusionary rule shall cease to be the members of the other backward classes covered by the expression backward class of citizens for the purpose of article 16 4 the impugned office memorandums dated august 13 1990 and september 25 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said o m in other words after the expiry of four months from today the implementation of the said o m shall be subject to the exclusion of the creamy layer in accordance with the criteria to be specified by the government of india and not otherwise 12 the implementation of the judgement of this court in indra sawhney i by identification of creamy layer was not 15 pa ge done promptly by certain states the state of kerala neither appointed a commission nor implemented the directions in the judgement for more than three years following which contempt proceedings had to be initiated against the state a high level committee was directed to be constituted by this court in the state of kerala for identifying the creamy layer among the designated backward classes of the state this court in indra sawhney v union of india2 hereinafter referred to as indra sawhney ii examined certain questions relating to the recommendations made by the said high level committee after thoroughly examining the factors which were given emphasis in the various opinions rendered in indra sawhney i for determining creamy layer amongst the backward classes this court held that persons from backward classes who occupied posts in higher services like ias ips and all india services had reached a higher level of social advancement and economic status and therefore were not entitled to be treated as backward such persons were to be treated as creamy layer without any further inquiry likewise people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore 2 2000 1 scc 168 16 pa ge should be treated as outside the backward class similarly persons from backward classes who had higher agricultural holdings or were receiving income from properties beyond a prescribed limit do not deserve the benefit of reservation the above mentioned categories were necessarily to be excluded from backward classes this court in indra sawhney ii held that the exclusion of the above mentioned categories is a judicial declaration made in indra sawhney i 13 in ashok kumar thakur v state of bihar3 this court was concerned with the notifications issued for the identification of creamy layer by the states of bihar and uttar pradesh the schedule to the memorandum issued by the government of india on 08 09 1993 pursuant to the judgement of indra sawhney i laying down the criteria for identifying creamy layer was approved as being in conformity with the law laid down in the said judgement the criteria fixed for identifying creamy layer by the states of uttar pradesh and bihar respectively were held to be wholly arbitrary and not to be in accordance with the guidelines laid down by this court in indra sawhney i consequently this court quashed the respective notifications issued by the 3 1995 5 scc 403 17 pa ge states of bihar and uttar pradesh and directed the states to follow the criteria laid down by the government of india in the memorandum dated 08 09 1993 for the academic year 1995 96 with fresh criteria for subsequent years to be framed in accordance with law 14 in this case we are concerned with the validity of the notifications dated 17 08 2016 and 28 08 2018 issued by the government of haryana the notification dated 17 08 2016 is in flagrant violation of the directions issued by this court in indra sawhney i and is at variance with the memorandum dated 08 09 1993 issued by the union of india the criteria mentioned for identifying such of those persons who are socially advanced have not been taken into account by the government of haryana while issuing the notification dated 17 08 2016 while issuing the notification dated 07 06 1995 the state government had followed the criteria laid out in the memorandum issued by the union of india on 08 09 1993 which was in tune with the directions given by this court in indra sawhney i in spite of section 5 2 of the 2016 act making it mandatory for identification and exclusion of creamy layer to be on the basis of social economic and other relevant factors the state of haryana has sought to determine creamy layer from backward 18 pa ge classes solely on the basis of economic criterion and has committed a grave error in doing so on this ground alone the notification dated 17 08 2016 requires to be set aside therefore we quash the notification dated 17 08 2016 giving liberty to the state government to issue a fresh notification within a period of 3 months from today after taking into account the principles laid down by this court in indra sawhney i and the criteria mentioned in section 5 2 of the 2016 act for determining creamy layer 15 as we have struck down the notification dated 17 08 2016 in toto there is no need for adjudicating the validity of the notification dated 28 08 2018 which is solely dependent on the notification dated 17 08 2016 admissions to educational institutions and appointment to state services on the basis of the notifications dated 17 08 2016 and 28 08 2018 shall not be disturbed 16 the writ petition and the appeals arising from the special leave petitions are disposed of accordingly j l nageswara rao j aniruddha bose new delhi august 24 2021 19 pa ge non reportable in the supreme court of india civil original appellate jurisdiction writ petition civil no 60 of 2019 pichra warg kalyan mahasabha haryana regd anr petitioners versus the state of haryana anr respondents with civil appeal no 4952 of 2021 arising out of slp c no 21893 of 2018 civil appeal nos 4953 4954 of 2021 arising out of slp c nos 32168 32169 of 2018 j u d g e m e n t l nageswara rao j leave granted in slp c no 21893 of 2018 slp c nos 32168 32169 of 2018 1 writ petition c no 60 of 2019 has been filed under article 32 of the constitution of india for quashing notifications dated 17 08 2016 and 28 08 2018 issued by the first respondent as arbitrary and violative of articles 14 15 and 16 of the constitution of india a further direction is 1 pa ge sought for a fresh survey and verification of data for identification and specification of creamy layer as per the provisions of the haryana backward classes reservation in services and admission in educational institutions act 2016 hereinafter referred to as the 2016 act the petitioners have also sought for a direction to the respondents to provide reservation to backward classes in haryana under the 2016 act by considering the existing defined criteria of creamy layer by the national commission for backward classes or the criteria used by the state of haryana prior to the 2016 act 2 reservation in backward classes as recommended by the mandal commission was scrutinised by this court in indra sawhney v union of india1 hereinafter referred to as indra sawhney i in the said judgement this court recommended constitution of a permanent body at the central level and at the level of the states to deal with the inclusion under inclusion and over inclusion of groups in the lists of other backward classes of citizens this court directed state governments to identify creamy layer amongst the backward classes and exclude them from the purview of reservation pursuant to the directions issued in 1 1992 supp 3 scc 217 2 pa ge indra sawhney i the haryana second backward classes commission was constituted on 12 10 1993 the said commission was assigned the function of specifying the basis for excluding socially advanced persons creamy layer from the backward classes on 16 05 1995 the haryana second backward classes commission submitted its report recommending the criteria for excluding socially advanced persons sections creamy layer from the backward classes the state government accepted the recommendations of the commission and decided that the benefit of reservation shall not extend to persons sections mentioned in annexure a to the circular dated 07 06 1995 issued by the commissioner and secretary to government of haryana welfare and scheduled castes and backward classes department the said annexure a included the children of those who held constitutional posts who were class i officers of the all india central and state services direct recruits class ii officers of the central and state services direct recruits employees in public sector undertakings etc and personnel belonging to armed forces including para military forces excluding persons holding civil posts children of persons belonging to a family which owned more than the permissible land under the statute of haryana pertaining to ceiling on 3 pa ge land holdings were also covered under annexure a another category specified in annexure a was with respect to the children of persons with gross annual income of rs 1 lakh or above or possessing wealth above the exemption limit as prescribed in the wealth tax act 1957 for a period of three consecutive years lastly annexure a brought within its fold children of persons of all other listed categories who were not disentitled to the benefit of reservation but had income from other sources of wealth bringing them within the aforementioned income wealth criteria 3 on 31 08 2010 the financial commissioner and principal secretary to government of haryana welfare of scheduled castes backward classes department informed the relevant authorities that the state government had decided to raise income limit to rs 4 5 lakh for determining creamy layer amongst the backward classes under the income wealth criteria later the haryana backward classes reservation in services and admission in educational institutions act 2016 was enacted to provide for reservation in services and admission in educational institutions to the persons belonging to backward classes in the state of haryana section 5 of the 2016 act provides that no persons belonging to creamy layer amongst the 4 pa ge backward classes shall be considered for admission in educational institutions against the seats reserved for backward classes they shall also not be entitled to claim reservation for appointment in services under the state against posts reserved for backward classes section 5 2 of the act postulates that the government shall by notification after taking into consideration social economic and such other factors as deemed appropriate specify the criteria for exclusion and identification of persons belonging to the backward classes as creamy layer 4 in exercise of the powers conferred by the 2016 act the state government issued a notification on 17 08 2016 specifying the criteria for exclusion of creamy layer within the backward classes as per the said notification children of persons having gross annual income up to rs 3 lakh shall first of all get the benefit of reservation in services and admission in educational institutions the left out quota shall go to that class of backward classes of citizens who earn more than rs 3 lakh but up to rs 6 lakh per annum the sections of backward classes earning above rs 6 lakh per annum shall be considered as creamy layer under section 5 of the 2016 act 5 pa ge 5 students aspiring to be admitted to mbbs course for the academic year 2018 2019 in the quota for backward classes filed writ petitions in the high court of punjab and haryana challenging the notification dated 17 08 2016 the main grievance of the petitioners in the said writ petitions was the sub classification of backward classes with preference in reservation given to a particular section of a backward class group the high court by its judgement dated 07 08 2018 in cwp no 15731 of 2018 and connected matters set aside the notification dated 17 08 2016 on the ground that the sub classification of the backward classes is arbitrary and violative of article 14 of the constitution of india the high court directed the counselling of students to be held afresh on the basis of the earlier criteria existing prior to the 2016 act the state of haryana questioned the correctness of the judgement of the high court before this court in slp c no 21893 of 2018 the request made by the state to stay the judgement of the high court dated 07 08 2018 was declined by this court on 28 08 2018 6 on the same day the state government issued a notification after obtaining an opinion of the advocate general of haryana whereby the criteria for computing annual income for the purposes of the notification dated 6 pa ge 17 08 2016 was fixed as gross annual income which shall include income from all sources by the said notification dated 28 08 2018 all previous notifications and instructions which provided for a different mode of computing annual income stood overruled students who having qualified in neet 2018 and seeking admission to mbbs and bds courses in the backward classes quota filed cwp no 22055 of 2018 in the high court assailing the legality and validity of the notifications dated 17 08 2016 and 28 08 2018 the high court upheld both the notifications aggrieved by which slp c nos 32168 32169 of 2018 have been filed before this court as the question arising in the writ petition c no 60 of 2019 and the appeals arising from slp c no 21893 of 2018 and slp c nos 32168 32169 of 2018 are common all of them are disposed of together by this judgement 7 the point considered by the high court in cwp no 15731 of 2018 was restricted to the sub classification of a backward class group while fixing the criteria for creamy layer by the notification dated 17 08 2016 apart from fixing the income criterion as rs 6 lakh for identifying and excluding the creamy layer the state government divided the remaining backward classes of citizens eligible for reservation into two groups on the basis of their annual 7 pa ge income the first group is of those persons who have gross annual income up to rs 3 lakh and the other comprising persons who have income between rs 3 lakh and rs 6 lakh according to the notification dated 17 08 2016 children of persons having gross annual income up to rs 3 lakh shall first be considered for the benefit of reservation in services and admission in educational institutions the left over quota shall then be filled up by the children of those whose annual income is between rs 3 lakh and rs 6 lakh the contention on behalf of the state government that such division was made to ensure that the benefit of reservation reached the most marginalised amongst the backward classes was rejected by the high court the high court was of the opinion that this sub classification is arbitrary and would result in depriving the benefit of reservation to persons belonging to backward classes who have income between rs 3 lakh to rs 6 lakh after examining the material produced by the government the high court criticised the state backward classes commission for not examining and validating data to establish social backwardness of the backward classes by making it clear that fixing rs 6 lakh as the income for determining the creamy layer amongst the backward classes was not in question before it the high court in its 8 pa ge judgement dated 07 08 2018 concluded that the sub classification giving preference to those with annual income less than rs 3 lakh is arbitrary 8 in its judgement dated 31 08 2018 in cwp no 22055 of 2018 the high court upheld the fixation of the income limit of rs 6 lakh per year as criteria for determining creamy layer amongst the backward classes after clarifying that the earlier notifications issued by the state government on 07 06 1995 09 08 2000 and 31 08 2010 had been superseded by the 2016 act the high court was of the opinion that fixing the criteria for creamy layer is in the interests of persons belonging to the marginalised sections of backward classes who actually need the benefit of reservation in so far as the notification dated 28 08 2018 is concerned the high court held that the state government had jurisdiction under the 2016 act to take into account the gross annual income from all sources for the purpose of arriving at the criteria for determining creamy layer as both the notifications dated 17 08 2016 and 28 08 2018 are in the larger interests of those backward classes who require the benefit of reservation the high court dismissed the writ petition 9 pa ge 9 we have heard mr siddharth dave learned senior counsel appearing for the petitioners and mr arun bhardwaj learned senior counsel appearing for the respondent state the principal contention of the petitioners is that the notifications dated 17 8 2016 and 28 08 2018 are contrary to the law laid down by this court in indra sawhney i as economic criterion cannot be the sole criterion for identifying creamy layer it was contended on behalf of the petitioners that the notifications are violative of section 5 of the 2016 act according to which social economic and other factors are to be taken into account for specifying the criteria for exclusion and identification of persons belonging to the backward classes as creamy layer the learned senior counsel for the petitioners submitted that the sub classification of the backward classes on the basis of income by the notification dated 17 08 2016 resulted in precluding one section of backward class of persons whose annual income was between rs 3 lakh to rs 6 lakh from the benefit of reservation computation of gross income by including income from all sources according to the notification dated 28 08 2018 is contrary to the notifications issued by the government of india as well as the notifications that were issued by the state government prior to the 2016 10 pa ge act according to the petitioners clubbing of salary income and agricultural income to compute the gross income results in exclusion of a large number of eligible sections of backward classes from seeking reservation in appointment to public services and admission to educational institutions 10 the submissions made on behalf of the petitioners were countered by the learned senior counsel appearing for the state who submitted that the notifications have been issued strictly in accordance with the judgement in indra sawhney i on behalf of the state it was contended that a detailed district wise survey was done by the commission to collect information relating to social and economic backwardness of all the backward classes before issuing the impugned notifications much stress was laid by the state on the laudable object that is achieved by the two notifications in question the sub classification amongst the backward classes is to ensure that people with lower income amongst backward classes get the benefit of reservation as they need a helping hand more than the others who fall within the higher income bracket of rs 3 lakh to rs 6 lakh the notification dated 28 08 2018 is also for the purpose of providing the benefit of reservation to the marginalised sections of backward classes as such of those sections 11 pa ge having a higher income should not get primacy and occupy the majority of the reserved seats posts 11 the notification dated 17 08 2016 was issued in exercise of the power conferred on the state government under the 2016 act section 5 2 of the 2016 act clearly provides that social economic and other factors have to be taken into account for the purpose of determining and excluding the creamy layer within a backward class it is relevant to mention that the notification that was issued on 07 06 1995 was in tune with the judgement of this court in indra sawhney i the said notification excluded certain persons who held constitutional posts and those who were in employment of the state and the centre in higher posts from the benefit of reservation in addition the social advancement of other categories was taken into account for the purpose of including such categories in creamy layer strangely by the notification dated 17 08 2016 the identification of creamy layer amongst backward classes was restricted only to the basis of economic criterion in clear terms this court held in indra sawhney i that the basis of exclusion of creamy layer cannot be merely economic j jeevan reddy in para 792 of the judgement in indra sawhney i held as follows 12 pa ge 792 in our opinion it is not a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class a backward class the very concept of a class denotes a number of persons having certain common traits which distinguish them from the others in a backward class under clause 4 of article 16 if the connecting link is the social backwardness it should broadly be the same in a given class if some of the members are far too advanced socially which in the context necessarily means economically and may also mean educationally the connecting thread between them and the remaining class snaps they would be misfits in the class after excluding them alone would the class be a compact class in fact such exclusion benefits the truly backward difficulty however really lies in drawing the line how and where to draw the line for while drawing the line it should be ensured that it does not result in taking away with one hand what is given by the other the basis of exclusion should not merely be economic unless of course the economic advancement is so high that it necessarily means social advancement let us illustrate the point a member of backward class say a member of carpenter caste goes to middle east and works there as a carpenter if you take his annual income in rupees it would be fairly high from the indian standard is he to be excluded from the backward class are his children in india to be deprived of the benefit of article 16 4 situation may however be different if he rises so high economically as to become say a factory owner himself in such a situation his social status also rises he himself would be in a position to provide employment to others in such a case his income is merely a measure of his social status even otherwise there 13 pa ge are several practical difficulties too in imposing an income ceiling for example annual income of rs 36 000 may not count for much in a city like bombay delhi or calcutta whereas it may be a handsome income in rural india anywhere the line to be drawn must be a realistic one another question would be should such a line be uniform for the entire country or a given state or should it differ from rural to urban areas and so on further income from agriculture may be difficult to assess and therefore in the case of agriculturists the line may have to be drawn with reference to the extent of holding while the income of a person can be taken as a measure of his social advancement the limit to be prescribed should not be such as to result in taking away with one hand what is given with the other the income limit must be such as to mean and signify social advancement at the same time it must be recognised that there are certain positions the occupants of which can be treated as socially advanced without any further enquiry for example if a member of a designated backward class becomes a member of ias or ips or any other all india service his status is society social status rises he is no longer socially disadvantaged his children get full opportunity to realise their potential they are in no way handicapped in the race of life his salary is also such that he is above want it is but logical that in such a situation his children are not given the benefit of reservation for by giving them the benefit of reservation other disadvantaged members of that backward class may be deprived of that benefit it is then argued for the respondents that one swallow doesn t make the summer and that merely because a few members of a caste or class become socially advanced the class caste as such does not cease to be backward it is pointed out that clause 4 of 14 pa ge article 16 aims at group backwardness and not individual backwardness while we agree that clause 4 aims at group backwardness we feel that exclusion of such socially advanced members will make the class a truly backward class and would more appropriately serve the purpose and object of clause 4 this discussion is confined to other backward classes only and has no relevance in the case of scheduled tribes and scheduled castes the following directions were issued in para 793 of the judgement 793 keeping in mind all these considerations we direct the government of india to specify the basis of exclusion whether on the basis of income extent of holding or otherwise of creamy layer this shall be done as early as possible but not exceeding four months on such specification persons falling within the net of exclusionary rule shall cease to be the members of the other backward classes covered by the expression backward class of citizens for the purpose of article 16 4 the impugned office memorandums dated august 13 1990 and september 25 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes contemplated by the said o m in other words after the expiry of four months from today the implementation of the said o m shall be subject to the exclusion of the creamy layer in accordance with the criteria to be specified by the government of india and not otherwise 12 the implementation of the judgement of this court in indra sawhney i by identification of creamy layer was not 15 pa ge done promptly by certain states the state of kerala neither appointed a commission nor implemented the directions in the judgement for more than three years following which contempt proceedings had to be initiated against the state a high level committee was directed to be constituted by this court in the state of kerala for identifying the creamy layer among the designated backward classes of the state this court in indra sawhney v union of india2 hereinafter referred to as indra sawhney ii examined certain questions relating to the recommendations made by the said high level committee after thoroughly examining the factors which were given emphasis in the various opinions rendered in indra sawhney i for determining creamy layer amongst the backward classes this court held that persons from backward classes who occupied posts in higher services like ias ips and all india services had reached a higher level of social advancement and economic status and therefore were not entitled to be treated as backward such persons were to be treated as creamy layer without any further inquiry likewise people with sufficient income who were in a position to provide employment to others should also be taken to have reached a higher social status and therefore 2 2000 1 scc 168 16 pa ge should be treated as outside the backward class similarly persons from backward classes who had higher agricultural holdings or were receiving income from properties beyond a prescribed limit do not deserve the benefit of reservation the above mentioned categories were necessarily to be excluded from backward classes this court in indra sawhney ii held that the exclusion of the above mentioned categories is a judicial declaration made in indra sawhney i 13 in ashok kumar thakur v state of bihar3 this court was concerned with the notifications issued for the identification of creamy layer by the states of bihar and uttar pradesh the schedule to the memorandum issued by the government of india on 08 09 1993 pursuant to the judgement of indra sawhney i laying down the criteria for identifying creamy layer was approved as being in conformity with the law laid down in the said judgement the criteria fixed for identifying creamy layer by the states of uttar pradesh and bihar respectively were held to be wholly arbitrary and not to be in accordance with the guidelines laid down by this court in indra sawhney i consequently this court quashed the respective notifications issued by the 3 1995 5 scc 403 17 pa ge states of bihar and uttar pradesh and directed the states to follow the criteria laid down by the government of india in the memorandum dated 08 09 1993 for the academic year 1995 96 with fresh criteria for subsequent years to be framed in accordance with law 14 in this case we are concerned with the validity of the notifications dated 17 08 2016 and 28 08 2018 issued by the government of haryana the notification dated 17 08 2016 is in flagrant violation of the directions issued by this court in indra sawhney i and is at variance with the memorandum dated 08 09 1993 issued by the union of india the criteria mentioned for identifying such of those persons who are socially advanced have not been taken into account by the government of haryana while issuing the notification dated 17 08 2016 while issuing the notification dated 07 06 1995 the state government had followed the criteria laid out in the memorandum issued by the union of india on 08 09 1993 which was in tune with the directions given by this court in indra sawhney i in spite of section 5 2 of the 2016 act making it mandatory for identification and exclusion of creamy layer to be on the basis of social economic and other relevant factors the state of haryana has sought to determine creamy layer from backward 18 pa ge classes solely on the basis of economic criterion and has committed a grave error in doing so on this ground alone the notification dated 17 08 2016 requires to be set aside therefore we quash the notification dated 17 08 2016 giving liberty to the state government to issue a fresh notification within a period of 3 months from today after taking into account the principles laid down by this court in indra sawhney i and the criteria mentioned in section 5 2 of the 2016 act for determining creamy layer 15 as we have struck down the notification dated 17 08 2016 in toto there is no need for adjudicating the validity of the notification dated 28 08 2018 which is solely dependent on the notification dated 17 08 2016 admissions to educational institutions and appointment to state services on the basis of the notifications dated 17 08 2016 and 28 08 2018 shall not be disturbed 16 the writ petition and the appeals arising from the special leave petitions are disposed of accordingly j l nageswara rao j aniruddha bose new delhi august 24 2021 19 pa ge 535 2018_crl a no 000255 000256 2018 court the division bench the high court state of 2021 11 26 statements and could not take place of evidence in the court small trivial omissions would not justify a finding by court that the witnesses concerned are liars the prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free the main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to 20 insignificant aspects thereof in the former case the defence may be justified in seeking advantage of incongruities obtaining in the evidence in the latter however no such benefit may be available to it 17 in the deposition of witnesses there are always normal discrepancies howsoever honest and truthful they may be these discrepancies are due to normal errors of observation normal errors of memory due to lapse of time due to mental disposition shock and horror at the time of occurrence and threat to the life it is not unoften that improvements in earlier version another v state mujahid v state bisoi v state ashfaq v registrar another v state shaji v state rameshwar v state ghumare v state pradesh v krishna mannan v state singh v state others v state another v the singh v state bariyar v state wasnik v state wasnik v state singh v state singh v state bariyar v state sangeet v state sangeet v state sangeet v state reportable in the supreme court of india criminal appellate jurisdiction criminal appeal nos 255 256 of 2018 bhagchandra appellant s versus state of madhya pradesh respondent s j u d g m e n t b r gavai j 1 the appellant has approached this court being aggrieved by the judgment and order dated 19th december 2017 passed by the division bench of the high court of madhya pradesh at jabalpur in criminal appeal no 1684 of 2017 thereby dismissing the appeal preferred by the appellant challenging the judgment and order passed by the second additional sessions judge hereinafter referred to as the trial judge dated 4th april 2017 vide which the 1 appellant was convicted for the offences punishable under section 302 read with section 201 and section 506 b of the indian penal code 1860 hereinafter referred to as the ipc the trial judge had awarded death sentence to the appellant for the offences punishable under section 302 of the ipc 3 counts and 7 years rigorous imprisonment each for the offences punishable under sections 201 and 506 b of the ipc respectively the trial judge has also made a reference being crrfc no 03 of 2017 to the high court under section 366 of the code of criminal procedure 1973 hereinafter referred to as cr p c for confirmation of death penalty vide impugned judgment and order the high court confirmed the death penalty 2 the prosecution story in brief is thus appellant bhagchandra is the real brother of deceased thakur das and deceased devki prasad deceased akhilesh was the son of deceased devki prasad and as such the nephew of the appellant pw 1 kiran patel is the wife of deceased devki prasad pw 2 urmila and pw 3 kamlesh are 2 the daughter and son of deceased devki prasad and kiran patel pw 1 3 deceased devki prasad resided in village pur along with his brother deceased thakur das his wife pw 1 kiran patel daughter pw 2 urmila sons pw 3 kamlesh deceased akhilesh and kisiyabai mother of the appellant 4 it is the prosecution case that on the fateful early morning of 11th october 2015 at around 05 00 05 30 am complainant kiran patel pw 1 had gone to attend the call of nature while returning she saw the appellant armed with an axe getting out of her house it is the prosecution case that there was previous enmity between the appellant on one hand and deceased thakur das and deceased devki prasad on the other she therefore suspected some foul play immediately after entering the house she saw thakur das lying dead smeared with blood and his neck was detached from the body in the courtyard she also found her son akhilesh lying dead it is the prosecution case that deceased devki prasad had gone to his field in the night so as to guard the crops suspecting something might be done to him pw 3 1 rushed towards the field which was nearby the house she saw the appellant assaulting her husband devki prasad with an axe she tried to stop the appellant but he threatened to kill her in the meanwhile the relatives and the neighbours had gathered at the spot 5 immediately after the incident a first information report hereinafter referred to as fir came to be registered on the basis of the oral complaint given by kiran patel pw 1 in the police station maharajpur after investigation charge sheet came to be filed before the concerned court which committed the case to the sessions judge 6 the trial judge framed charges against the appellant under sections 302 3 counts 201 and 506 part ii of the ipc the appellant denied all the charges and claimed that he was falsely implicated by kiran patel pw 1 to grab the property 7 at the conclusion of the trial the trial judge found the appellant guilty of committing the offences he was charged with and as such awarded sentences as stated hereinabove the trial court also made a reference being crrfc no 03 of 4 2017 to the high court for confirmation of the capital punishment awarded by it 8 being aggrieved by the judgment of conviction and sentence passed by the trial court the appellant preferred an appeal being criminal appeal no 1684 of 2017 before the high court the high court dismissed the appeal and confirmed the death penalty awarded by the trial court being aggrieved thereby the present appeal 9 we have heard shri n hariharan learned senior counsel appearing on behalf of the appellant and smt swarupama chaturvedi learned assistant advocate general appearing on behalf of the respondent state 10 shri hariharan would submit that the entire case against the appellant is a fabricated one and has been framed at the instance of kiran patel pw 1 the learned senior counsel submitted that the evidence as placed on record by the prosecution does not establish the guilt of the accused appellant beyond reasonable doubt 5 11 the learned senior counsel submitted that firstly the time of the incident as shown by the prosecution is itself doubtful he submitted that the post mortem report of all the three deceased persons would show that semi digested food was found in the stomach of the deceased persons he therefore submitted that the death would have occurred around 3 4 hours after their last meal he submitted that from the evidence brought on record it would show that deceased devki prasad had left for the field at around 09 00 pm he submitted that therefore the deceased must have taken their meal at around 09 00 pm as such the death has occurred between 12 00 midnight and 01 00 am 12 he further submitted that there are material contradictions in the testimonies of pw 1 kiran patel pw 2 urmila and pw 3 kamlesh he submitted that even the conduct of pw 1 is unnatural she has stated that while going to answer the call of nature she had put a latch to close the door of the house he submitted that normally a person would not do such an act he further submitted that the evidence of pw 7 rakesh vishwakarma is totally 6 unnatural from the evidence of pw 7 it is clear that though he has witnessed the incident he has not informed the same to the police who were very much available in the village he has only informed pw 6 kamlesh patel s o gulabchandra patel for the sake of convenience hereinafter referred to as kamlesh ii he submitted that it is clear that pw 7 is an introduced witness 13 shri hariharan further submitted that the prosecution has withheld the most important witness i e kisiyabai mother of deceased thakur das and devki prasad as well as the appellant though her statement was recorded under section 161 cr p c he submitted that since the prosecution has withheld an important witness an adverse inference needs to be drawn against the prosecution the learned senior counsel in this respect relies on the judgment of this court in the case of pratap singh and another v state of madhya pradesh1 14 the learned senior counsel submitted that the so called recovery of axe on the memorandum of appellant 1 2005 13 scc 624 7 under section 27 of the indian evidence act 1872 hereinafter referred to as the evidence act is also of no relevance he submitted that firstly the serology report does not support the prosecution case he submitted that the recovery on memorandum would be relevant only if the prosecution is in a position to establish that the article recovered was used in the crime he submitted that apart from the serology report not supporting the prosecution case the said axe has not been put to any of the witnesses to establish that it was the same weapon which was used in the crime 15 shri hariharan would submit that the trial court as well as the high court has not considered the evidence in its correct perspective he submitted that the evidence has been considered in a totally erroneous manner he submitted that though this court is exercising the jurisdiction under article 136 of the constitution of india since the matter pertains to death penalty it is necessary that this court should reappreciate the entire evidence he relies on the judgments of this court in the cases of mohammed ajmal mohammad 8 amir kasab alias abu mujahid v state of maharashtra2 dayanidhi bisoi v state of orissa3 and mohd arif alias ashfaq v registrar supreme court of india and others4 16 shri hariharan in the alternative submitted that in no circumstances the death penalty was warranted in the facts of the present case he submitted that firstly the trial court has imposed the death penalty on the same day on which the conviction was recorded he submitted that a sufficient period of time between the order of conviction and the sentence ought to have been given to the appellant so that the appellant would have availed of his right to point out the aggravating and mitigating circumstances he further submitted that the courts below have also failed to take into consideration that the accused was not a hardened criminal the accused did not have any criminal antecedents and it was his first crime he further submitted that the trial court as well as the high court has not taken into consideration 2 2012 9 scc 1 3 2003 9 scc 310 4 2014 9 scc 737 9 the possibility of the appellant being reformed it is therefore submitted that the death penalty is not warranted at all in the facts and circumstances of the present case 17 smt chaturvedi on the contrary submitted that both the courts below have rightly convicted the appellant and also awarded death penalty she submitted that minor inconsistencies in the evidence of the witnesses should not be given much importance she further submitted that when ocular evidence has been found by the court to be cogent trustworthy and reliable then some inconsistencies in the medical evidence would not be relevant she relies on the judgment of this court in the case of krishnan and another v state represented by inspector of police5 to assert the said contention she further submitted that merely because the serology report is not conclusive it cannot be a ground to disbelieve the prosecution case for the said proposition she relies on the judgment of this court in the case of r shaji v state of kerala6 5 2003 7 scc 56 6 2013 14 scc 266 10 18 smt chaturvedi in order to meet the challenge about the evidence of pw 7 rakesh submitted that the reaction of a witness to a situation may differ from person to person she submitted that merely because pw 7 rakesh has informed pw 6 kamlesh first which was prior to informing the police it does not put a dent on his testimony for this she relies on the judgment of this court in the case of rammi alias rameshwar v state of madhya pradesh7 19 she further submitted that taking into consideration the brutality of murder wherein three blood relatives have been done away with for no fault of theirs warrants no lesser penalty than the death penalty she submitted that the necks of all the three persons were segregated due to the brutal attack and as such the trial court has rightly awarded death penalty and the high court has rightly confirmed the same she relies on the judgment of this court in the case of ravi s o ashok ghumare v state of maharashtra8 20 shri hariharan in rejoinder submitted that in view of the law laid down by this court relevant material is required 7 1999 8 scc 649 8 2019 9 scc 622 11 to be placed before the court while considering as to whether the death penalty should be awarded or not he submitted that accordingly an affidavit of the close relatives of the appellant has been placed on record he further submitted that the certificate from the prison authority is also placed on record which would show that the conduct of the appellant is satisfactory not warranting death penalty 21 with the assistance of the learned counsel for the parties we have examined the materials placed on record 22 pw 1 kiran patel is the wife of deceased devki prasad she has stated in her evidence that on the date of the incident at around 05 00 am she had gone out to answer the call of nature at that time her brother in law thakur das sons akhilesh and kamlesh daughter urmila and mother in law kisiyabai were sleeping at home when she returned after around 10 minutes she saw appellant armed with an axe coming out of her house she suspected some foul play when she entered the house she saw her brother in law thakur das lying dead in outer room his neck was cut when she came in the courtyard she saw her son 12 akhilesh dead having injuries on his neck and head she stated that her son kamlesh and daughter urmila had gone to the place of gulab after seeing the appellant assaulting their uncle and brother both of them came and informed her that thakur das and akhilesh were assaulted by the appellant she suspected that the appellant had gone towards the field and therefore she followed the appellant towards the field she saw the appellant assaulting her husband devki prasad with the axe when she tried to stop the accused from assaulting the deceased the accused abused her and told her to go away and threatened her that she would also meet the same fate she stated that when she was returning home she saw pw 7 rakesh thereafter pw 4 rammilan pw 5 khillu patel and pw 6 kamlesh ii also came she has further stated in her evidence that deceased thakur das was residing with the appellant for 10 years however the appellant started demanding the land of thakur das and his tractor as such the appellant forced thakur das to leave his house thereafter thakur das had started residing with the family of deceased devki prasad 13 she has stated that the appellant thought that thakur das s property would come to the family of devki prasad and so the appellant had assaulted and killed her brother in law her husband and son pw 1 has been cross examined at length however in spite of lengthy cross examination her evidence insofar as the incident is concerned has gone unchallenged 23 pw 2 urmila was about 11 12 years old at the time of incident after putting preliminary questions to her the trial judge found that she was capable of understanding the questions and answering the same and as such her statement was recorded without administering oath to her 24 she stated that on the day of the incident after her mother went to answer the call of nature she was doing the household work she heard the sound of dham dham and thought that it might be a dog s sound she went towards the place from where the sound was coming and saw that the appellant was assaulting the deceased with an axe her brother akhilesh was sleeping in the courtyard she tried to wake him up but he did not get up the appellant came to 14 the courtyard along with the axe and started assaulting akhilesh she got frightened and therefore went to pw 6 kamlesh ii s house her brother kamlesh pw 3 had also woken up he also tried to wake akhilesh up but he did not get up the appellant tried to catch hold of kamlesh pw 3 too however kamlesh pw 3 ran away with urmila to kamlesh ii s house she further stated that thereafter her mother came she informed about the incident to her mother thereafter her mother went to the field she stated that her mother saw the appellant assaulting the deceased thereafter her mother came home and started shouting and raising hue and cry as such pw 6 kamlesh ii and pw 4 rammilan came there the said child witness has also been thoroughly cross examined however her evidence insofar as the main incident is concerned has gone unchallenged similar is the evidence of pw 3 kamlesh who was aged 12 13 years at the time of the incident 25 it will be thus clear from the evidence of pw 1 kiran patel that she has personally witnessed the appellant assaulting deceased devki prasad it will be further clear 15 from the evidence of pw 2 urmila and pw 3 kamlesh that they have personally witnessed the appellant assaulting deceased thakur das and deceased akhilesh the evidence of these three witnesses would also reveal that immediately after pw 1 came from field she was informed by pw 2 and pw 3 about the assault by the appellant on thakur das and akhilesh the testimony of these three witnesses is duly corroborated by the other witnesses pw 4 rammilan is the son of shyambihari shyambihari is another brother of deceased thakur das deceased devki prasad and appellant bhagchandra he has stated in his deposition that on the date of incident when he was going out at around 5 30 am his aunt kiran patel was shouting maar dala maar dala when he went near his aunt kiran patel he saw that inside the house thakur das and akhilesh were lying dead when he went to the field he saw devki prasad lying dead in front of the tractor he stated that kiran informed him about the incident this witness had accompanied pw 1 to the police station for lodging the report this witness has also undergone lengthy cross examination nothing damaging 16 has come on record in the cross examination this witness would be in a sense a neutral witness inasmuch as his relation with both the appellant and the deceased is of the same degree pw 1 had immediately disclosed about the incident to him and he had accompanied her to lodge the fir 26 similar is the testimony of pw 5 khillu patel 27 pw 6 kamlesh ii is also related to the witnesses deceased and the appellant he stated that on the date of the incident at around 04 00 am he had gone to answer the call of nature while returning he received a message on his mobile and in that light he saw the appellant running towards him on him questioning the appellant as to what he was doing there the appellant said i thought that you are thakur das at that time the appellant was having an axe with him thereafter pw 6 came home and was resting at around 05 00 05 30 am the children of devki prasad namely urmila pw 2 and akhilesh pw 3 came to him both were frightened and told him that bhagchandra uncle had hacked thakur das and akhilesh with the axe he 17 further stated that he too was afraid as he was alone and could not do anything he stated that in the meantime kiran bhabhi had come and informed about the incident 28 it could thus be seen that all these witnesses establish the presence of each other pw 1 kiran patel stated about the presence of pw 4 rammilan pw 5 khillu patel and pw 6 kamlesh ii and about them immediately coming to the spot and her informing them about the incident pws 4 5 and 6 corroborated the testimony of pw 1 in that aspect pw 2 urmila and pw 3 kamlesh stated about witnessing the incident of appellant assaulting deceased thakur das and akhilesh and running towards the house of kamlesh ii and informing him about the same pw 6 too corroborated this version of pws 1 2 and 3 29 insofar as the evidence of pw 7 rakesh is concerned we find that the conduct of the said witness appears to be somewhat unnatural he stated that after witnessing the incident he had gone to another village on motorcycle to see his friend from there he had gone to the hospital at maharajpur after that he came home at around 10 00 18 10 30 am though the police were present in the village he did not inform them about the incident on his own he stated that he had informed kamlesh ii about the incident we therefore find that it will not be appropriate to rely on his testimony however even if the testimony of pw 7 is eschewed we find that the ocular testimonies of pws 1 to 6 establish the case of the prosecution beyond reasonable doubt that it is the appellant who had assaulted the deceased persons 30 no doubt that there are minor discrepancies in the evidence of these pws it will be relevant to refer to the following observations of this court in the case of state of uttar pradesh v krishna master and others9 15 before appreciating evidence of the witnesses examined in the case it would be instructive to refer to the criteria for appreciation of oral evidence while appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth once that impression is found it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies drawbacks and infirmities 9 2010 12 scc 324 19 pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief minor discrepancies on trivial matters not touching the core of the case hypertechnical approach by taking sentences torn out of context here or there from the evidence attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole 16 if the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless the reasons are weighty and formidable it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details minor omissions in the police statements are never considered to be fatal the statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court small trivial omissions would not justify a finding by court that the witnesses concerned are liars the prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free the main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to 20 insignificant aspects thereof in the former case the defence may be justified in seeking advantage of incongruities obtaining in the evidence in the latter however no such benefit may be available to it 17 in the deposition of witnesses there are always normal discrepancies howsoever honest and truthful they may be these discrepancies are due to normal errors of observation normal errors of memory due to lapse of time due to mental disposition shock and horror at the time of occurrence and threat to the life it is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly therefore it is the duty of the court to separate falsehood from the truth in sifting the evidence the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out in the light of these principles this court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case emphasis supplied 31 it could thus be seen that what is required to be considered is whether the evidence of the witness read as a whole appears to have a ring of truth it has been held that minor discrepancies on trivial matters not touching the core 21 of the case hypertechnical approach by taking sentences torn out of context here or there from the evidence would not ordinarily permit rejection of the evidence as a whole it has been held that the prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free what is important is to see as to whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof it has been held that there are always normal discrepancies due to normal errors of observation normal errors of memory due to lapse of time due to mental disposition shock and horror at the time of occurrence it is the duty of the court to separate falsehood from the truth in every case 32 applying these principles we are of the view that the minor discrepancies in the evidence of the prosecution witnesses are not of such a nature which would persuade this court to disbelieve their testimonies it is further to be noted that the witnesses are rustic villagers and some inconsistencies in their depositions are bound to be there 22 33 in this respect it will be apposite to refer to the following observations of this court in the case of krishna master supra 23 the record of the case shows that this witness jhabbulal was cross examined at great length he was subjected to gruelling cross examination which runs into 31 pages the first and firm impression which one gathers on reading the testimony of this witness is that he is a rustic witness a rustic witness who is subjected to fatiguing taxing and tiring cross examination for days together is bound to get confused and make some inconsistent statements some discrepancies are bound to take place if a witness is cross examined at length for days together therefore the discrepancies noticed in the evidence of a rustic witness who is subjected to gruelling cross examination should not be blown out of proportion to do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime 24 the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole the rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time further a witness is bound to face shock of the untimely death of his near relative s therefore the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness 23 34 it can thus be seen that this court has held that in case of rustic witnesses some inconsistencies and discrepancies are bound to be found it has been held that the inconsistencies in the evidence of the witnesses should not be blown out of proportion to do so is to ignore hard realities of village life and give undeserved benefit to the accused it has been held that the evidence of such witnesses has to be appreciated as a whole a rustic witness is not expected to remember every small detail of the incident and the manner in which the incident had happened further a witness is bound to face shock of the untimely death of his near relatives upon perusal of the evidence of the witnesses as a whole we are of the considered view that their evidence is cogent reliable and trustworthy 35 having held that the ocular testimony of the witnesses establishes the guilt of the accused beyond reasonable doubt we come to the other contentions of the appellant insofar as the contention of the appellant that the medical evidence does not support the prosecution case it will be appropriate 24 to rely on the judgment of this court in the case of krishnan and another supra 18 the evidence of dr muthuswami pw 7 and dr abbas ali pw 8 do not in any way run contrary to the ocular evidence in any event the ocular evidence being cogent credible and trustworthy minor variance if any with the medical evidence is not of any consequence 20 coming to the plea that the medical evidence is at variance with ocular evidence it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the variable keeping the medical evidence as the constant 21 it is trite that where the eyewitnesses account is found credible and trustworthy medical opinion pointing to alternative possibilities is not accepted as conclusive witnesses as bentham said are the eyes and ears of justice hence the importance and primacy of the quality of the trial process eyewitnesses account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence including medical evidence as the sole touchstone for the test of such credibility the evidence must be tested for its inherent consistency and the inherent probability of the story consistency with the account of other witnesses held to be creditworthy consistency with the undisputed facts the credit of the witnesses their performance in the witness box their power of observation etc then the probative value of such 25 evidence becomes eligible to be put into the scales for a cumulative evaluation 36 as already discussed hereinabove the ocular evidence of the eye witnesses is cogent reliable and trustworthy apart from that the oral version in the testimonies of pws 1 2 and 3 is duly corroborated by the injuries as shown in the post mortem report of the deceased persons therefore the contention in this regard is liable to be rejected 37 the attack of the appellant is on the other circumstances like the recovery of the axe under section 27 of the evidence act not being relevant since the same not being established to be used in the offence nor in the serology report etc 38 since the present case is a case of direct evidence even if the prosecution has failed to prove the other incriminating circumstances beyond reasonable doubt in our view it will not have an effect on the prosecution case in the present case another factor that is to be noted is that immediately after the incident fir is lodged by pw 1 who was 26 accompanied by pw 4 the fir fully corroborates the ocular evidence of prosecution witnesses 39 in that view of the matter we are of the considered view that even upon reappreciation of the evidence it cannot be said that the trial court has committed an error in convicting the appellant and the high court in confirming the same 40 that leaves us with the question of sentence we will have to consider as to whether the capital punishment in the present case is warranted or not 41 recently this court in the case of mohd mannan alias abdul mannan v state of bihar10 after considering earlier judgments of this court on the present issue in the cases of bachan singh v state of punjab11 and machhi singh and others v state of punjab12 observed thus 72 the proposition of law which emerges from the judgments referred to above is itself death sentence cannot be imposed except in the rarest of rare cases for which special reasons have to be recorded as mandated in section 354 3 of the criminal procedure code in deciding whether a case falls within the category of the rarest of rare 10 2019 16 scc 584 11 1980 2 scc 684 12 1983 3 scc 470 27 the brutality and or the gruesome and or heinous nature of the crime is not the sole criterion it is not just the crime which the court is to take into consideration but also the criminal the state of his mind his socio economic background etc awarding death sentence is an exception and life imprisonment is the rule 42 this bench recently in the case of mofil khan and another v the state of jharkhand13 has observed thus 8 one of the mitigating circumstances is the probability of the accused being reformed and rehabilitated the state is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused death sentence ought not to be imposed save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosed see bachan singh v state of punjab 1980 2 scc 684 to satisfy that the sentencing aim of reformation is unachievable rendering life imprisonment completely futile the court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme this analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal along with other circumstances see santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 in rajendra pralhadrao wasnik v state of maharashtra 2019 12 scc 460 this court dealt with the review of a 13 rp criminal no 641 2015 in criminal appeal no 1795 2009 dated 26 11 2021 28 judgment of this court confirming death sentence and observed as under 45 the law laid down by various decisions of this court clearly and unequivocally mandates that the probability not possibility or improbability or impossibility that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence this is one of the mandates of the special reasons requirement of section 354 3 crpc and ought not to be taken lightly since it involves snuffing out the life of a person to effectuate this mandate it is the obligation on the prosecution to prove to the court through evidence that the probability is that the convict cannot be reformed or rehabilitated this can be achieved by bringing on record inter alia material about his conduct in jail his conduct outside jail if he has been on bail for some time medical evidence about his mental make up contact with his family and so on similarly the convict can produce evidence on these issues as well 43 in the present case it is to be noted that the trial court had convicted the appellant and imposed death penalty on the very same day from the judgment of the trial court it does not appear that the appellant was given a meaningful time and a real opportunity of hearing on the question of 29 sentence from the judgment of the trial court as well as the high court it does not appear that the courts below have drawn a balance sheet of mitigating and aggravating circumstances the trial court as well as the high court has only taken into consideration the crime but have not taken into consideration the criminal his state of mind his socio economic background etc at this juncture it will be relevant to refer to the following observations of this court in the case of rajendra pralhadrao wasnik v state of maharashtra14 47 consideration of the reformation rehabilitation and reintegration of the convict into society cannot be overemphasised until bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 the emphasis given by the courts was primarily on the nature of the crime its brutality and severity bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict despite the view expressed by the constitution bench there have been several instances some of which have been pointed out in bariyar santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 2009 2 scc cri 1150 and 14 2019 12 scc 460 30 in sangeet v state of haryana sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner as observed in sangeet sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 in the sentencing process both the crime and the criminal are equally important therefore we should not forget that the criminal however ruthless he might be is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime therefore it is for the prosecution and the courts to determine whether such a person notwithstanding his crime can be reformed and rehabilitated to obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken the process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society of course notwithstanding any information made available and its analysis by experts coupled with the evidence on record there could be instances where the social reintegration of the convict may not be possible if that should happen the option of a long duration of imprisonment is permissible 44 in view of the settled legal position it is our bounden duty to take into consideration the probability of the accused being reformed and rehabilitated it is also our duty to take into consideration not only the crime but also the criminal his state of mind and his socio economic conditions the deceased as well as the appellant are rustic villagers in a 31 property dispute the appellant has got done away with two of his siblings and a nephew the state has not placed on record any evidence to show that there is no possibility with respect to reformation or rehabilitation of the convict the appellant has placed on record the affidavits of prahalad patel son of appellant and rajendra patel nephew of appellant and also the report of the jail superintendent central jail jabalpur the appellant comes from a rural and economically poor background there are no criminal antecedents the appellant cannot be said to be a hardened criminal this is the first offence committed by the appellant no doubt a heinous one the certificate issued by the jail superintendent shows that the conduct of the appellant during incarceration has been satisfactory it cannot therefore be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative 45 we are therefore inclined to convert the sentence imposed on the appellant from death to life however taking 32 into consideration the gruesome murder of two of his siblings and one nephew we are of the view that the appellant deserves rigorous imprisonment of 30 years 46 accordingly the appeals are partly allowed the conviction of the appellant for the offences punishable under sections 302 201 and 506 b of the ipc is affirmed however the death sentence awarded to the appellant is converted to life imprisonment for a period of 30 years 47 before we part with the judgment we must appreciate the valuable assistance rendered by shri n hariharan learned senior counsel appearing on behalf of the appellant and smt swarupama chaturvedi learned assistant advocate general appearing on behalf of the respondent state j l nageswara rao j b r gavai 33 j b v nagarathna new delhi december 09 2021 34 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal nos 255 256 of 2018 bhagchandra appellant s versus state of madhya pradesh respondent s j u d g m e n t b r gavai j 1 the appellant has approached this court being aggrieved by the judgment and order dated 19th december 2017 passed by the division bench of the high court of madhya pradesh at jabalpur in criminal appeal no 1684 of 2017 thereby dismissing the appeal preferred by the appellant challenging the judgment and order passed by the second additional sessions judge hereinafter referred to as the trial judge dated 4th april 2017 vide which the 1 appellant was convicted for the offences punishable under section 302 read with section 201 and section 506 b of the indian penal code 1860 hereinafter referred to as the ipc the trial judge had awarded death sentence to the appellant for the offences punishable under section 302 of the ipc 3 counts and 7 years rigorous imprisonment each for the offences punishable under sections 201 and 506 b of the ipc respectively the trial judge has also made a reference being crrfc no 03 of 2017 to the high court under section 366 of the code of criminal procedure 1973 hereinafter referred to as cr p c for confirmation of death penalty vide impugned judgment and order the high court confirmed the death penalty 2 the prosecution story in brief is thus appellant bhagchandra is the real brother of deceased thakur das and deceased devki prasad deceased akhilesh was the son of deceased devki prasad and as such the nephew of the appellant pw 1 kiran patel is the wife of deceased devki prasad pw 2 urmila and pw 3 kamlesh are 2 the daughter and son of deceased devki prasad and kiran patel pw 1 3 deceased devki prasad resided in village pur along with his brother deceased thakur das his wife pw 1 kiran patel daughter pw 2 urmila sons pw 3 kamlesh deceased akhilesh and kisiyabai mother of the appellant 4 it is the prosecution case that on the fateful early morning of 11th october 2015 at around 05 00 05 30 am complainant kiran patel pw 1 had gone to attend the call of nature while returning she saw the appellant armed with an axe getting out of her house it is the prosecution case that there was previous enmity between the appellant on one hand and deceased thakur das and deceased devki prasad on the other she therefore suspected some foul play immediately after entering the house she saw thakur das lying dead smeared with blood and his neck was detached from the body in the courtyard she also found her son akhilesh lying dead it is the prosecution case that deceased devki prasad had gone to his field in the night so as to guard the crops suspecting something might be done to him pw 3 1 rushed towards the field which was nearby the house she saw the appellant assaulting her husband devki prasad with an axe she tried to stop the appellant but he threatened to kill her in the meanwhile the relatives and the neighbours had gathered at the spot 5 immediately after the incident a first information report hereinafter referred to as fir came to be registered on the basis of the oral complaint given by kiran patel pw 1 in the police station maharajpur after investigation charge sheet came to be filed before the concerned court which committed the case to the sessions judge 6 the trial judge framed charges against the appellant under sections 302 3 counts 201 and 506 part ii of the ipc the appellant denied all the charges and claimed that he was falsely implicated by kiran patel pw 1 to grab the property 7 at the conclusion of the trial the trial judge found the appellant guilty of committing the offences he was charged with and as such awarded sentences as stated hereinabove the trial court also made a reference being crrfc no 03 of 4 2017 to the high court for confirmation of the capital punishment awarded by it 8 being aggrieved by the judgment of conviction and sentence passed by the trial court the appellant preferred an appeal being criminal appeal no 1684 of 2017 before the high court the high court dismissed the appeal and confirmed the death penalty awarded by the trial court being aggrieved thereby the present appeal 9 we have heard shri n hariharan learned senior counsel appearing on behalf of the appellant and smt swarupama chaturvedi learned assistant advocate general appearing on behalf of the respondent state 10 shri hariharan would submit that the entire case against the appellant is a fabricated one and has been framed at the instance of kiran patel pw 1 the learned senior counsel submitted that the evidence as placed on record by the prosecution does not establish the guilt of the accused appellant beyond reasonable doubt 5 11 the learned senior counsel submitted that firstly the time of the incident as shown by the prosecution is itself doubtful he submitted that the post mortem report of all the three deceased persons would show that semi digested food was found in the stomach of the deceased persons he therefore submitted that the death would have occurred around 3 4 hours after their last meal he submitted that from the evidence brought on record it would show that deceased devki prasad had left for the field at around 09 00 pm he submitted that therefore the deceased must have taken their meal at around 09 00 pm as such the death has occurred between 12 00 midnight and 01 00 am 12 he further submitted that there are material contradictions in the testimonies of pw 1 kiran patel pw 2 urmila and pw 3 kamlesh he submitted that even the conduct of pw 1 is unnatural she has stated that while going to answer the call of nature she had put a latch to close the door of the house he submitted that normally a person would not do such an act he further submitted that the evidence of pw 7 rakesh vishwakarma is totally 6 unnatural from the evidence of pw 7 it is clear that though he has witnessed the incident he has not informed the same to the police who were very much available in the village he has only informed pw 6 kamlesh patel s o gulabchandra patel for the sake of convenience hereinafter referred to as kamlesh ii he submitted that it is clear that pw 7 is an introduced witness 13 shri hariharan further submitted that the prosecution has withheld the most important witness i e kisiyabai mother of deceased thakur das and devki prasad as well as the appellant though her statement was recorded under section 161 cr p c he submitted that since the prosecution has withheld an important witness an adverse inference needs to be drawn against the prosecution the learned senior counsel in this respect relies on the judgment of this court in the case of pratap singh and another v state of madhya pradesh1 14 the learned senior counsel submitted that the so called recovery of axe on the memorandum of appellant 1 2005 13 scc 624 7 under section 27 of the indian evidence act 1872 hereinafter referred to as the evidence act is also of no relevance he submitted that firstly the serology report does not support the prosecution case he submitted that the recovery on memorandum would be relevant only if the prosecution is in a position to establish that the article recovered was used in the crime he submitted that apart from the serology report not supporting the prosecution case the said axe has not been put to any of the witnesses to establish that it was the same weapon which was used in the crime 15 shri hariharan would submit that the trial court as well as the high court has not considered the evidence in its correct perspective he submitted that the evidence has been considered in a totally erroneous manner he submitted that though this court is exercising the jurisdiction under article 136 of the constitution of india since the matter pertains to death penalty it is necessary that this court should reappreciate the entire evidence he relies on the judgments of this court in the cases of mohammed ajmal mohammad 8 amir kasab alias abu mujahid v state of maharashtra2 dayanidhi bisoi v state of orissa3 and mohd arif alias ashfaq v registrar supreme court of india and others4 16 shri hariharan in the alternative submitted that in no circumstances the death penalty was warranted in the facts of the present case he submitted that firstly the trial court has imposed the death penalty on the same day on which the conviction was recorded he submitted that a sufficient period of time between the order of conviction and the sentence ought to have been given to the appellant so that the appellant would have availed of his right to point out the aggravating and mitigating circumstances he further submitted that the courts below have also failed to take into consideration that the accused was not a hardened criminal the accused did not have any criminal antecedents and it was his first crime he further submitted that the trial court as well as the high court has not taken into consideration 2 2012 9 scc 1 3 2003 9 scc 310 4 2014 9 scc 737 9 the possibility of the appellant being reformed it is therefore submitted that the death penalty is not warranted at all in the facts and circumstances of the present case 17 smt chaturvedi on the contrary submitted that both the courts below have rightly convicted the appellant and also awarded death penalty she submitted that minor inconsistencies in the evidence of the witnesses should not be given much importance she further submitted that when ocular evidence has been found by the court to be cogent trustworthy and reliable then some inconsistencies in the medical evidence would not be relevant she relies on the judgment of this court in the case of krishnan and another v state represented by inspector of police5 to assert the said contention she further submitted that merely because the serology report is not conclusive it cannot be a ground to disbelieve the prosecution case for the said proposition she relies on the judgment of this court in the case of r shaji v state of kerala6 5 2003 7 scc 56 6 2013 14 scc 266 10 18 smt chaturvedi in order to meet the challenge about the evidence of pw 7 rakesh submitted that the reaction of a witness to a situation may differ from person to person she submitted that merely because pw 7 rakesh has informed pw 6 kamlesh first which was prior to informing the police it does not put a dent on his testimony for this she relies on the judgment of this court in the case of rammi alias rameshwar v state of madhya pradesh7 19 she further submitted that taking into consideration the brutality of murder wherein three blood relatives have been done away with for no fault of theirs warrants no lesser penalty than the death penalty she submitted that the necks of all the three persons were segregated due to the brutal attack and as such the trial court has rightly awarded death penalty and the high court has rightly confirmed the same she relies on the judgment of this court in the case of ravi s o ashok ghumare v state of maharashtra8 20 shri hariharan in rejoinder submitted that in view of the law laid down by this court relevant material is required 7 1999 8 scc 649 8 2019 9 scc 622 11 to be placed before the court while considering as to whether the death penalty should be awarded or not he submitted that accordingly an affidavit of the close relatives of the appellant has been placed on record he further submitted that the certificate from the prison authority is also placed on record which would show that the conduct of the appellant is satisfactory not warranting death penalty 21 with the assistance of the learned counsel for the parties we have examined the materials placed on record 22 pw 1 kiran patel is the wife of deceased devki prasad she has stated in her evidence that on the date of the incident at around 05 00 am she had gone out to answer the call of nature at that time her brother in law thakur das sons akhilesh and kamlesh daughter urmila and mother in law kisiyabai were sleeping at home when she returned after around 10 minutes she saw appellant armed with an axe coming out of her house she suspected some foul play when she entered the house she saw her brother in law thakur das lying dead in outer room his neck was cut when she came in the courtyard she saw her son 12 akhilesh dead having injuries on his neck and head she stated that her son kamlesh and daughter urmila had gone to the place of gulab after seeing the appellant assaulting their uncle and brother both of them came and informed her that thakur das and akhilesh were assaulted by the appellant she suspected that the appellant had gone towards the field and therefore she followed the appellant towards the field she saw the appellant assaulting her husband devki prasad with the axe when she tried to stop the accused from assaulting the deceased the accused abused her and told her to go away and threatened her that she would also meet the same fate she stated that when she was returning home she saw pw 7 rakesh thereafter pw 4 rammilan pw 5 khillu patel and pw 6 kamlesh ii also came she has further stated in her evidence that deceased thakur das was residing with the appellant for 10 years however the appellant started demanding the land of thakur das and his tractor as such the appellant forced thakur das to leave his house thereafter thakur das had started residing with the family of deceased devki prasad 13 she has stated that the appellant thought that thakur das s property would come to the family of devki prasad and so the appellant had assaulted and killed her brother in law her husband and son pw 1 has been cross examined at length however in spite of lengthy cross examination her evidence insofar as the incident is concerned has gone unchallenged 23 pw 2 urmila was about 11 12 years old at the time of incident after putting preliminary questions to her the trial judge found that she was capable of understanding the questions and answering the same and as such her statement was recorded without administering oath to her 24 she stated that on the day of the incident after her mother went to answer the call of nature she was doing the household work she heard the sound of dham dham and thought that it might be a dog s sound she went towards the place from where the sound was coming and saw that the appellant was assaulting the deceased with an axe her brother akhilesh was sleeping in the courtyard she tried to wake him up but he did not get up the appellant came to 14 the courtyard along with the axe and started assaulting akhilesh she got frightened and therefore went to pw 6 kamlesh ii s house her brother kamlesh pw 3 had also woken up he also tried to wake akhilesh up but he did not get up the appellant tried to catch hold of kamlesh pw 3 too however kamlesh pw 3 ran away with urmila to kamlesh ii s house she further stated that thereafter her mother came she informed about the incident to her mother thereafter her mother went to the field she stated that her mother saw the appellant assaulting the deceased thereafter her mother came home and started shouting and raising hue and cry as such pw 6 kamlesh ii and pw 4 rammilan came there the said child witness has also been thoroughly cross examined however her evidence insofar as the main incident is concerned has gone unchallenged similar is the evidence of pw 3 kamlesh who was aged 12 13 years at the time of the incident 25 it will be thus clear from the evidence of pw 1 kiran patel that she has personally witnessed the appellant assaulting deceased devki prasad it will be further clear 15 from the evidence of pw 2 urmila and pw 3 kamlesh that they have personally witnessed the appellant assaulting deceased thakur das and deceased akhilesh the evidence of these three witnesses would also reveal that immediately after pw 1 came from field she was informed by pw 2 and pw 3 about the assault by the appellant on thakur das and akhilesh the testimony of these three witnesses is duly corroborated by the other witnesses pw 4 rammilan is the son of shyambihari shyambihari is another brother of deceased thakur das deceased devki prasad and appellant bhagchandra he has stated in his deposition that on the date of incident when he was going out at around 5 30 am his aunt kiran patel was shouting maar dala maar dala when he went near his aunt kiran patel he saw that inside the house thakur das and akhilesh were lying dead when he went to the field he saw devki prasad lying dead in front of the tractor he stated that kiran informed him about the incident this witness had accompanied pw 1 to the police station for lodging the report this witness has also undergone lengthy cross examination nothing damaging 16 has come on record in the cross examination this witness would be in a sense a neutral witness inasmuch as his relation with both the appellant and the deceased is of the same degree pw 1 had immediately disclosed about the incident to him and he had accompanied her to lodge the fir 26 similar is the testimony of pw 5 khillu patel 27 pw 6 kamlesh ii is also related to the witnesses deceased and the appellant he stated that on the date of the incident at around 04 00 am he had gone to answer the call of nature while returning he received a message on his mobile and in that light he saw the appellant running towards him on him questioning the appellant as to what he was doing there the appellant said i thought that you are thakur das at that time the appellant was having an axe with him thereafter pw 6 came home and was resting at around 05 00 05 30 am the children of devki prasad namely urmila pw 2 and akhilesh pw 3 came to him both were frightened and told him that bhagchandra uncle had hacked thakur das and akhilesh with the axe he 17 further stated that he too was afraid as he was alone and could not do anything he stated that in the meantime kiran bhabhi had come and informed about the incident 28 it could thus be seen that all these witnesses establish the presence of each other pw 1 kiran patel stated about the presence of pw 4 rammilan pw 5 khillu patel and pw 6 kamlesh ii and about them immediately coming to the spot and her informing them about the incident pws 4 5 and 6 corroborated the testimony of pw 1 in that aspect pw 2 urmila and pw 3 kamlesh stated about witnessing the incident of appellant assaulting deceased thakur das and akhilesh and running towards the house of kamlesh ii and informing him about the same pw 6 too corroborated this version of pws 1 2 and 3 29 insofar as the evidence of pw 7 rakesh is concerned we find that the conduct of the said witness appears to be somewhat unnatural he stated that after witnessing the incident he had gone to another village on motorcycle to see his friend from there he had gone to the hospital at maharajpur after that he came home at around 10 00 18 10 30 am though the police were present in the village he did not inform them about the incident on his own he stated that he had informed kamlesh ii about the incident we therefore find that it will not be appropriate to rely on his testimony however even if the testimony of pw 7 is eschewed we find that the ocular testimonies of pws 1 to 6 establish the case of the prosecution beyond reasonable doubt that it is the appellant who had assaulted the deceased persons 30 no doubt that there are minor discrepancies in the evidence of these pws it will be relevant to refer to the following observations of this court in the case of state of uttar pradesh v krishna master and others9 15 before appreciating evidence of the witnesses examined in the case it would be instructive to refer to the criteria for appreciation of oral evidence while appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth once that impression is found it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies drawbacks and infirmities 9 2010 12 scc 324 19 pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief minor discrepancies on trivial matters not touching the core of the case hypertechnical approach by taking sentences torn out of context here or there from the evidence attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole 16 if the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless the reasons are weighty and formidable it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details minor omissions in the police statements are never considered to be fatal the statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court small trivial omissions would not justify a finding by court that the witnesses concerned are liars the prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free the main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to 20 insignificant aspects thereof in the former case the defence may be justified in seeking advantage of incongruities obtaining in the evidence in the latter however no such benefit may be available to it 17 in the deposition of witnesses there are always normal discrepancies howsoever honest and truthful they may be these discrepancies are due to normal errors of observation normal errors of memory due to lapse of time due to mental disposition shock and horror at the time of occurrence and threat to the life it is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly therefore it is the duty of the court to separate falsehood from the truth in sifting the evidence the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out in the light of these principles this court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case emphasis supplied 31 it could thus be seen that what is required to be considered is whether the evidence of the witness read as a whole appears to have a ring of truth it has been held that minor discrepancies on trivial matters not touching the core 21 of the case hypertechnical approach by taking sentences torn out of context here or there from the evidence would not ordinarily permit rejection of the evidence as a whole it has been held that the prosecution evidence may suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free what is important is to see as to whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof it has been held that there are always normal discrepancies due to normal errors of observation normal errors of memory due to lapse of time due to mental disposition shock and horror at the time of occurrence it is the duty of the court to separate falsehood from the truth in every case 32 applying these principles we are of the view that the minor discrepancies in the evidence of the prosecution witnesses are not of such a nature which would persuade this court to disbelieve their testimonies it is further to be noted that the witnesses are rustic villagers and some inconsistencies in their depositions are bound to be there 22 33 in this respect it will be apposite to refer to the following observations of this court in the case of krishna master supra 23 the record of the case shows that this witness jhabbulal was cross examined at great length he was subjected to gruelling cross examination which runs into 31 pages the first and firm impression which one gathers on reading the testimony of this witness is that he is a rustic witness a rustic witness who is subjected to fatiguing taxing and tiring cross examination for days together is bound to get confused and make some inconsistent statements some discrepancies are bound to take place if a witness is cross examined at length for days together therefore the discrepancies noticed in the evidence of a rustic witness who is subjected to gruelling cross examination should not be blown out of proportion to do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime 24 the basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole the rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time further a witness is bound to face shock of the untimely death of his near relative s therefore the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness 23 34 it can thus be seen that this court has held that in case of rustic witnesses some inconsistencies and discrepancies are bound to be found it has been held that the inconsistencies in the evidence of the witnesses should not be blown out of proportion to do so is to ignore hard realities of village life and give undeserved benefit to the accused it has been held that the evidence of such witnesses has to be appreciated as a whole a rustic witness is not expected to remember every small detail of the incident and the manner in which the incident had happened further a witness is bound to face shock of the untimely death of his near relatives upon perusal of the evidence of the witnesses as a whole we are of the considered view that their evidence is cogent reliable and trustworthy 35 having held that the ocular testimony of the witnesses establishes the guilt of the accused beyond reasonable doubt we come to the other contentions of the appellant insofar as the contention of the appellant that the medical evidence does not support the prosecution case it will be appropriate 24 to rely on the judgment of this court in the case of krishnan and another supra 18 the evidence of dr muthuswami pw 7 and dr abbas ali pw 8 do not in any way run contrary to the ocular evidence in any event the ocular evidence being cogent credible and trustworthy minor variance if any with the medical evidence is not of any consequence 20 coming to the plea that the medical evidence is at variance with ocular evidence it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses account which had to be tested independently and not treated as the variable keeping the medical evidence as the constant 21 it is trite that where the eyewitnesses account is found credible and trustworthy medical opinion pointing to alternative possibilities is not accepted as conclusive witnesses as bentham said are the eyes and ears of justice hence the importance and primacy of the quality of the trial process eyewitnesses account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence including medical evidence as the sole touchstone for the test of such credibility the evidence must be tested for its inherent consistency and the inherent probability of the story consistency with the account of other witnesses held to be creditworthy consistency with the undisputed facts the credit of the witnesses their performance in the witness box their power of observation etc then the probative value of such 25 evidence becomes eligible to be put into the scales for a cumulative evaluation 36 as already discussed hereinabove the ocular evidence of the eye witnesses is cogent reliable and trustworthy apart from that the oral version in the testimonies of pws 1 2 and 3 is duly corroborated by the injuries as shown in the post mortem report of the deceased persons therefore the contention in this regard is liable to be rejected 37 the attack of the appellant is on the other circumstances like the recovery of the axe under section 27 of the evidence act not being relevant since the same not being established to be used in the offence nor in the serology report etc 38 since the present case is a case of direct evidence even if the prosecution has failed to prove the other incriminating circumstances beyond reasonable doubt in our view it will not have an effect on the prosecution case in the present case another factor that is to be noted is that immediately after the incident fir is lodged by pw 1 who was 26 accompanied by pw 4 the fir fully corroborates the ocular evidence of prosecution witnesses 39 in that view of the matter we are of the considered view that even upon reappreciation of the evidence it cannot be said that the trial court has committed an error in convicting the appellant and the high court in confirming the same 40 that leaves us with the question of sentence we will have to consider as to whether the capital punishment in the present case is warranted or not 41 recently this court in the case of mohd mannan alias abdul mannan v state of bihar10 after considering earlier judgments of this court on the present issue in the cases of bachan singh v state of punjab11 and machhi singh and others v state of punjab12 observed thus 72 the proposition of law which emerges from the judgments referred to above is itself death sentence cannot be imposed except in the rarest of rare cases for which special reasons have to be recorded as mandated in section 354 3 of the criminal procedure code in deciding whether a case falls within the category of the rarest of rare 10 2019 16 scc 584 11 1980 2 scc 684 12 1983 3 scc 470 27 the brutality and or the gruesome and or heinous nature of the crime is not the sole criterion it is not just the crime which the court is to take into consideration but also the criminal the state of his mind his socio economic background etc awarding death sentence is an exception and life imprisonment is the rule 42 this bench recently in the case of mofil khan and another v the state of jharkhand13 has observed thus 8 one of the mitigating circumstances is the probability of the accused being reformed and rehabilitated the state is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused death sentence ought not to be imposed save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosed see bachan singh v state of punjab 1980 2 scc 684 to satisfy that the sentencing aim of reformation is unachievable rendering life imprisonment completely futile the court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme this analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal along with other circumstances see santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 in rajendra pralhadrao wasnik v state of maharashtra 2019 12 scc 460 this court dealt with the review of a 13 rp criminal no 641 2015 in criminal appeal no 1795 2009 dated 26 11 2021 28 judgment of this court confirming death sentence and observed as under 45 the law laid down by various decisions of this court clearly and unequivocally mandates that the probability not possibility or improbability or impossibility that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence this is one of the mandates of the special reasons requirement of section 354 3 crpc and ought not to be taken lightly since it involves snuffing out the life of a person to effectuate this mandate it is the obligation on the prosecution to prove to the court through evidence that the probability is that the convict cannot be reformed or rehabilitated this can be achieved by bringing on record inter alia material about his conduct in jail his conduct outside jail if he has been on bail for some time medical evidence about his mental make up contact with his family and so on similarly the convict can produce evidence on these issues as well 43 in the present case it is to be noted that the trial court had convicted the appellant and imposed death penalty on the very same day from the judgment of the trial court it does not appear that the appellant was given a meaningful time and a real opportunity of hearing on the question of 29 sentence from the judgment of the trial court as well as the high court it does not appear that the courts below have drawn a balance sheet of mitigating and aggravating circumstances the trial court as well as the high court has only taken into consideration the crime but have not taken into consideration the criminal his state of mind his socio economic background etc at this juncture it will be relevant to refer to the following observations of this court in the case of rajendra pralhadrao wasnik v state of maharashtra14 47 consideration of the reformation rehabilitation and reintegration of the convict into society cannot be overemphasised until bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 the emphasis given by the courts was primarily on the nature of the crime its brutality and severity bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 placed the sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict despite the view expressed by the constitution bench there have been several instances some of which have been pointed out in bariyar santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 2009 2 scc cri 1150 and 14 2019 12 scc 460 30 in sangeet v state of haryana sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner as observed in sangeet sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 in the sentencing process both the crime and the criminal are equally important therefore we should not forget that the criminal however ruthless he might be is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime therefore it is for the prosecution and the courts to determine whether such a person notwithstanding his crime can be reformed and rehabilitated to obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken the process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society of course notwithstanding any information made available and its analysis by experts coupled with the evidence on record there could be instances where the social reintegration of the convict may not be possible if that should happen the option of a long duration of imprisonment is permissible 44 in view of the settled legal position it is our bounden duty to take into consideration the probability of the accused being reformed and rehabilitated it is also our duty to take into consideration not only the crime but also the criminal his state of mind and his socio economic conditions the deceased as well as the appellant are rustic villagers in a 31 property dispute the appellant has got done away with two of his siblings and a nephew the state has not placed on record any evidence to show that there is no possibility with respect to reformation or rehabilitation of the convict the appellant has placed on record the affidavits of prahalad patel son of appellant and rajendra patel nephew of appellant and also the report of the jail superintendent central jail jabalpur the appellant comes from a rural and economically poor background there are no criminal antecedents the appellant cannot be said to be a hardened criminal this is the first offence committed by the appellant no doubt a heinous one the certificate issued by the jail superintendent shows that the conduct of the appellant during incarceration has been satisfactory it cannot therefore be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative 45 we are therefore inclined to convert the sentence imposed on the appellant from death to life however taking 32 into consideration the gruesome murder of two of his siblings and one nephew we are of the view that the appellant deserves rigorous imprisonment of 30 years 46 accordingly the appeals are partly allowed the conviction of the appellant for the offences punishable under sections 302 201 and 506 b of the ipc is affirmed however the death sentence awarded to the appellant is converted to life imprisonment for a period of 30 years 47 before we part with the judgment we must appreciate the valuable assistance rendered by shri n hariharan learned senior counsel appearing on behalf of the appellant and smt swarupama chaturvedi learned assistant advocate general appearing on behalf of the respondent state j l nageswara rao j b r gavai 33 j b v nagarathna new delhi december 09 2021 34 583 2020_w p c no 000026 2020 writ petition civil pioneer rupees one legislature court union of india 2016 01 12 survey of some of the case law by way of expounding the true province of an explanation 238 coming to the facts of the instant case it is necessary to analyse the limbs of section 11 sections 7 9 and 10 read with section 5 provide for the procedure to be adopted by the adjudicating authority in dealing with applications for initiating cirp by the financial creditor operational creditor and corporate debtor it is after that section 11 makes its appearance in the code it purports to declare that an 304 application for initiating cirp cannot be made by categories expressly detailed in section 11 section 11 a vetoes an application by a corporate debtor which is itself undergoing a cirp an argument sought to be addressed by the petitioner is that the purport of the said provision is that it prohibits not only a corporate debtor which is undergoing a cirp from initiating a cirp against itself which but for the fact it is undergoing a cirp would be maintainable under secti ltd v state ltd v parag veeraya v n 1957 sc 540 1957 scr 488 limited v union ors v anant kashmir v triloki gupta v state kerala v aravind atri v state pradesh v narain ltd v municipal limited v satish signatory v satish shivananda v karnataka sons v hansraj bengal v anwar 1952 sc 75 royappa v state bano v union ltd v union ltd v union others v union shine v union others v union singhal v union 2020 sc 122 pradesh v narain limited v parag ltd v a 1956 sc 213 board v t ltd v kotak ltd v kotak ltd v union dalmia v s r 1959 scr 279 1958 sc 538 shukla v state gujarat v shri theatre v state ltd v union dalmia v justice 1958 sc 538 1959 scr 279 1959 scj 147 p v kartar 1964 sc 1135 kelkar v chief 1967 sc 839 states v butler another v shree tigner v texas 1959 sc 1124 association v general 1960 sc 384 jaisinghani v union k v triloki sawney v union kerala v aravind atri v state atri v state sripadagalvaru v state limited v icici trust v vithal trust v vithal swamy v cbi ors v anant bhatia v state ltd v commissioner ltd v cto 1961 sc 315 ltd v bank 1967 sc 389 mahajan v state 1977 sc 915 ors v state cit v bipinchandra 1961 sc 1040 ltd v bank 1967 sc 389 ltd v amrit ltd v parag 1957 scr 488 sons v hansraj cell v white abbot v minister ltd v lucas ltd v haider valimohamed v haji exchange v v s ltd v shanti pal v jiban pittapur v g raikar v national india v harnam chettiar v yesodai bhatia v union ors v state 1996 sc 1936 1976 sc 237 works v logan co v irving jackson v woolley shivananda v karnataka works v ho others v jot abbott v minister 1895 ac 425 1895 ac 425 1895 ac 425 1976 sc 49 bansidhar v state commissioner v shah 1987 sc 1217 limited v satish ltd v satish agarwal v sebi agarwal v sebi paripoornan v state paripoornan v state singh v ram singh v ram sharma v jammu sharma v jammu aggarwal v state aggarwal v state das v cit das v cit ltd v satish ltd v satish bai v vijay royappa v state 1974 sc 555 gandhi v union singh v ram paripoornan v state 2005 sc 3446 tax v buckingham stott v stott vijay v state reportable in the supreme court of india civil original jurisdiction writ petition c no 26 of 2020 manish kumar petitioner s versus union of india and another respondent s with writ petition c no 53 2020 writ petition c no 28 2020 writ petition c no 47 2020 writ petition c no 27 2020 writ petition c no 73 2020 writ petition c no 328 2020 writ petition c no 210 2020 writ petition c no 191 2020 writ petition c no 164 2020 writ petition c no 163 2020 writ petition c no 166 2020 writ petition c no 173 2020 writ petition c no 182 2020 writ petition c no 176 2020 writ petition c no 177 2020 writ petition c no 257 2020 writ petition c no 341 2020 writ petition c no 267 2020 writ petition c no 333 2020 1 writ petition c no 337 2020 writ petition c no 388 2020 writ petition c no 402 2020 writ petition c no 390 2020 writ petition c no 393 2020 writ petition c no 783 2020 transferred case c no 228 2020 writ petition c no 579 2020 writ petition c no 806 2020 writ petition c no 714 2020 writ petition c no 642 2020 writ petition c no 805 2020 writ petition c no 19 2020 writ petition c no 33 2020 writ petition c no 75 2020 writ petition c no 165 2020 writ petition c no 850 2020 writ petition c no 374 2020 writ petition c no 229 2020 writ petition c no 228 2020 writ petition c no 209 2020 j u d g m e n t k m joseph j 1 the petitioners have approached this court under article 32 of the constitution of india they call in 2 question sections 3 4 and 10 of the insolvency and bankruptcy code amendment act 2020 hereinafter referred to as the impugned amendments for short section 3 of the impugned amendment amends section 7 1 of the insolvency and bankruptcy code 2016 hereinafter referred to as the code for short section 4 of the impugned amendment incorporates an additional explanation in section 11 of the code section 10 of the impugned amendment inserts section 32a in the code 2 section 7 1 of the code before the amendment read as follows 7 initiation of corporate insolvency resolution process by financial creditor 1 a financial creditor either by itself or jointly with other financial creditors or any other person on behalf of the financial creditor as may be notified by the central government may file an application for initiating corporate insolvency resolution process against a corporate debtor before the adjudicating authority when a default has occurred explanation for the purposes of this sub section a default includes a default in respect of a financial debt owed not only to 3 the applicant financial creditor but to any other financial creditor of the corporate debtor the amendment to the same by section 3 of the impugned amendment incorporates 3 provisos to section 7 1 which reads as under provided that for the financial creditors referred to in clauses a and b of sub section 6a of section 21 an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent of the total number of such creditors in the same class whichever is less provided further that for financial creditors who are allottees under a real estate project an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent of the total number of such allottees under the same real estate project whichever is less provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the adjudicating authority before the commencement of the insolvency and bankruptcy code amendment act 2020 such application shall be modified to 4 comply with the requirements of the first or second proviso within thirty days of the commencement of the said act failing which the application shall be deemed to be withdrawn before its admission 3 section 11 before the amendment read as follows 11 persons not entitled to make application the following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this chapter namely a a corporate debtor undergoing a corporate insolvency resolution process or b a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application or c a corporate debtor or a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this chapter or d a corporate debtor in respect of whom a liquidation order has been made explanation 1 i for the purposes of this section a corporate debtor includes a corporate applicant in respect of such corporate debtor the explanation which was inserted through the impugned amendment reads as follows 5 explanation ii for the purposes of this section it is hereby clarified that nothing in this section shall prevent a corporate debtor referred to in clauses a to d from initiating corporate insolvency resolution process against another corporate debtor 4 section 32a inserted through the impugned amendment reads as follows 32a 1 notwithstanding anything to the contrary contained in this code or any other law for the time being in force the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the adjudicating authority under section 31 if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not a a promoter or in the management or control of the corporate debtor or a related party of such a person or b a person with regard to whom the relevant investigating authority has on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence and has submitted or filed a report or a complaint to the relevant statutory authority or court provided that if a prosecution had been instituted during the corporate 6 insolvency resolution process against such corporate debtor it shall stand discharged from the date of approval of the resolution plan subject to requirements of this sub section having been fulfilled provided further that every person who was a designated partner as defined in clause j of section 2 of the limited liability partnership act 2008 or an officer who is in default as defined in clause 60 of section 2 of the companies act 2013 or was in any manner incharge of or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor s liability has ceased under this sub section 2 no action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process of the corporate debtor where such property is covered under a resolution plan approved by the adjudicating authority under section 31 which results in the change in control of the corporate debtor to a person or sale of liquidation assets under the provisions of chapter iii of part ii of this code to a person who was not 7 i a promoter or in the management or control of the corporate debtor or a related party of such a person or ii a person with regard to whom the relevant investigating authority has on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence and has submitted or filed a report or a complaint to the relevant statutory authority or court explanation for the purposes of this sub section it is hereby clarified that i an action against the property of the corporate debtor in relation to an offence shall include the attachment seizure retention or confiscation of such property under such law as may be applicable to the corporate debtor ii nothing in this sub section shall be construed to bar an action against the property of any person other than the corporate debtor or a person who has acquired such property through corporate insolvency resolution process or liquidation process under this code and fulfils the requirements specified in this section against whom such an action may be taken under such law as may be applicable 3 subject to the provisions contained in sub sections 1 and 2 and notwithstanding the immunity given in 8 this section the corporate debtor and any person who may be required to provide assistance under such law as may be applicable to such corporate debtor or person shall extend all assistance and co operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process who are the petitioners 5 more than the lion s share of the petitioners are allottees under real estate projects and hereinafter referred to as allotees they have trained the constitutional gun at the impugned provisos 6 under the second proviso a new threshold has been declared for an allottee to move an application under section 7 for triggering the insolvency resolution process under the code the threshold is the requirement that there should be at least 100 allottees to support the application or 10 per cent of the total allottees whichever is less moreover they should belong to the same project almost all except in two petitions the petitioners also had under the erstwhile regime which permitted even a single allottee 9 to move an application under section 7 filed petitions singly or with less than the number required under the proviso and they are visited with the provisions of the third proviso as per which such of those applications under section 7 which had not been admitted would stand withdrawn within 30 days if the newly declared threshold of 100 allottees or 10 per cent of the allottee whichever is lower was not garnered by the applicant applicants 7 in some of the petitions the petitioners are money lenders that is they have stepped in to provide finance for the real estate projects they are also visited with the requirement which is imposed upon them under the first impugned proviso which is on similar lines as those comprised in the second proviso 8 then there is no doubt section 32a which stands impugned by the creditors and allottees the code 9 the code was enacted in the year 2016 it is one of the most important economic measures contemplated 10 by the state to prevent insolvency to provide last mile funding to revive ailing businesses maximise value of assets of the entrepreneurs balance the interest of all the stakeholders and even to alter the order of priority of payment of government dues the code is divided into five parts the first part is shortest portion part ii deals with what we are concerned with in these cases and it purports to deal with insolvency resolution and liquidation for corporate persons corporate person has been defined in section 3 7 as follows 3 7 corporate person means a company as defined in clause 20 of section 2 of the companies act 2013 a limited liability partnership as defined in clause n of sub section 1 of section 2 of the limited liability partnership act 2008 or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider 10 section 3 8 defines corporate debtor which provides that a corporate debtor means a person who owes a debt to any person 11 11 we may notice that chapter ii of part ii which consists of sections 6 to 32 deal with the corporate insolvency resolution process chapter iii deals with ordinary liquidation process in regard to corporate person chapter iv of part ii consisting of four sections deal with fast track insolvency resolution process chapter v which consists of section 59 only deals with voluntary liquidation of corporate person chapter vi deals with miscellaneous aspects chapter vii part ii deals with penalties 12 part iii deals with insolvency resolution and bankruptcy code for individuals and partnership firms it may be noticed at once that partnership firms with limited liability as defined in the limited liability partnership act 2008 fall within the definition of the word corporate person and insolvency and liquidation process in regard to the same is found in part ii of the code it is in regard to insolvency resolution and bankruptcy for the other partnership firms which one has to look to the provisions of part iii part iii begins with section 78 and ends with section 187 the further provisions relate to the regulation of 12 insolvency professional agencies and information utilities they are all key instrumentalities for the effective working of the code equally it may be apposite to bear in mind section 238a it reads as follows 238a limitation the provisions of the limitation act 1963 36 of 1963 shall as far as may be apply to the proceedings or appeals before the adjudicating authority the national company law appellate tribunal the debt recovery tribunal or the debt recovery appellate tribunal as the case may be 13 shri krishna mohan menon learned counsel for the petitioners allottees in some of the petitions has addressed the following submissions before us the impugned amendment clearly falls foul of the mandate of articles 14 19 1 g 21 and 300a of the constitution the amendment by virtue of section 3 of the amendment act introducing the second proviso in section 7 1 of the code makes a hostile discrimination between financial creditors the category to which the petitioners belong and the other financial creditors 13 secondly it is contended that the amendment imposing a threshold restriction is afflicted with the vice of palpable and hostile discrimination qua operational creditors the purported protection sought to be accorded to the real estate developer cannot form the premise for inflicting violation of constitutionally protected freedom under article 19 1 g just as much as it also constitutes an insupportable invasion of the grand mandate of equality next he would submit that there are inherent leakages in the impugned provisions which would make it unworkable thereafter learned counsel would submit that the impugned amendment is also bad in law for the reason that it is manifestly arbitrary yet another argument addressed by shri krishna mohan menon learned counsel is that the amendment has the legally pernicious effect of creating a class within a class a result which is frowned upon by the law 14 14 learned counsel would expatiate and submit that under the code the law provides for a period of 14 days for the adjudicating authority to decide whether an application under section 7 should be admitted section 12 declares an inflexible time limit for the insolvency resolution process to be terminated the whole purport of the provisions of the code and the manner in which it is structured is geared to achieve a laudable object the code aims at improving the ranking of india in the matter of ease of doing business it is an economic measure which is intended to transform india into a country which would attract capital and investment the code has indeed resulted in a transformation of attitudes of the key players in that it has come to be perceived as a law not merely on paper but one with teeth to it he would point out that this court in its decision in the pioneer s case pioneer urban land and infrastructure ltd and another v union of india and others1 has elaborately dealt with the apprehension that allowing the home buyers 1 2019 8 scc 416 15 like the petitioners who finance the builder s activities to invoke the cirp process will lead to misuse of the provisions and allayed the unfounded fears yet the legislature has ventured to place unjustifiable clogs on the right of one category of financial creditors alone which is impermissible the spectre of a speculative investor running riot and playing havoc has been adequately addressed by this court there is no worthwhile data of misuse by home buyers he points out the judgments passed by nclat where the financial creditors who are home buyers approach the tribunal and the cases reflect gross and inordinate delay of nearly five years justifying the approach made by the home buyers under the code in other words there were genuine cases where the debtor had become insolvent and hence the home buyer had complete justification in knocking at the doors of the competent tribunal under the code he took us through the reports of the parliamentary committee and complained that no reasons are discernible to justify the amendments equally he commended for our 16 acceptance the observations in the dissent notes and contended that they fortify the submissions 15 in regard to the comparison sought to be made with similar requirements in sections 397 398 read with 399 of the companies act 1956 and section 241 and 244 of the companies act 2013 he would submit that there are significant distinctions 16 firstly he would submit that in the case of shareholders approaching the tribunal under the companies act they would be armed with the details regarding shareholding which are always available having regard to the scheme of the companies act on the other hand he points that in regard to home buyers who have sunk their hard earned money in real estate projects there is no system under which they could obtain data or information regarding the persons similarly circumstanced and whose co operation and support is necessary under the impugned amendment to activise the code 17 secondly he would submit that having regard to the explanation in section 244 of the companies act 2013 it brings about clarity in regard to the 17 situation where there is a joint holding the absence of any such similar provision in section 7 of the code is emphasised in an attempt at persuading the court to overturn the law he would further point out the practical difficulties in the working of the amended law he submits that the date of default of various home buyers may be different therefore to forge a common complaint impelling a group of home buyers to come together is impracticable and not workable he would submit that legislature cannot be permitted to take away through one hand what it has given by the other 18 learned counsel would further contended that as far as the third proviso is concerned while accepting the position that the 14 days period for disposal of the matter under the code has been understood to be directory and not mandatory at the same time it cannot be the law that a case should grace the docket endlessly and never witness an end and the retrospectivity which it reflects clearly renders it arbitrary 18 19 shri shikhil suri learned counsel for the petitioner in writ petition civil no 191 of 2020 would submit that the impugned amendment is arbitrary being in the teeth of the principles laid down in pioneer supra the object of the law would stand defeated he contends the ordinance would not only deprive the petitioner of her right under section 7 but it also violates article 14 of the constitution of india the threshold limit is unreasonable and arbitrary it is excessive and irrational it is not in public interest he also points out that there exists adequate shield against a single allottee misusing the code the threshold is thrust upon only on the home buyer and is not applicable across the board for other financial creditors it is discriminatory there is no rationale it treats equals unequally and unequals as equals there is no intelligible differentia the law does not permit classes among financial creditors there is breach of the guarantee of equal protection of law the threshold in section 4 namely default of rupees one crore is the one which applies to all creditors it 19 is inexplicable as to how only in regard to home buyers a different threshold should be insisted upon the remedy of the home buyer is defeated the ordinance was brought in haste without proper discussion and debate the amendment takes away the vested right of the home buyers there is no intelligible differentia bearing a nexus with the object and purpose of the act he also emphasised the practical difficulties involved in arranging the necessary numerical strength under the impugned provision 20 shri piyush singh learned counsel for the petitioners would submit that once the right is conferred to make an application then it cannot come conditioned with threshold limit as is provided in the impugned provisos secondly he would point out that there is manifest arbitrariness that apart he would also contend that there is hostile discrimination qua other corporate debtor the builder who is a corporate debtor in other words is given a more favourable treatment than other corporate debtors which is afflicted with the vice of hostile discrimination he also complained of both under and over inclusiveness 20 in the impugned provisions next learned counsel submits that the very object is discriminatory drawing our attention to both chitra sharma and others v union of india and others2 and pioneer supra he would highlight that having regard to the background in which the rights of the home buyer was recognised as being one of that of a financial creditor the amendment is clearly impermissible he would also submit that having regard to the stand taken by the government in the case before this court in particular pioneer supra the principles of promissory estoppel will apply and prevent enactment of the impugned provisions he would expatiate and submit that the conditions which have been imposed render the remedy illusory he drew our attention to order 1 rule 8 of the code of civil procedure and also took us to the explanation therein he would submit that the proviso is not on similar lines as order 1 rule 8 this is for the reason that under the procedure under order 1 rule 8 the numerical stipulation in the impugned provisos is not insisted upon once persons 2 2018 18 scc 575 21 having same interest institute a civil suit after following the procedure all persons having the same interest become involved and what is more would be bound by the decision section 12 of the consumer protection act which also captures and embodies the principle of order 1 rule 8 ensures the protection of class interest and also protect class interest without putting stiff barriers as threshold limits as done by the impugned amendment he pointed out that the real estate owners do not take any loan from financial institutions they raise capital exclusively from the allottees virtually in such circumstances to put this threshold limit is clearly impermissible he drew our attention to the judgment of the court in motilal padampat sugar mills co ltd v state of u p3 to buttress his submission regarding availability of principles of promissory estoppel there is manifest arbitrariness in the provisions he complained that the rera has not been constituted in all the states he also made an attempt at pointing out the perception that the amendment is to confer an unmerited advantage 3 1979 2 scc 409 22 on the builder this he purported to do by drawing our attention to an article in a newspaper he essentially projected this argument as a thinly disguised argument of malice against the law giver he also sought to draw support from the judgment of this court in nagpur investment trust and others v vithal rao and others4 he reiterated the principle of hostile discrimination he drew our attention to the definition of the word allottee in rera it is here that he complained of the provision being under inclusive and over inclusive the legislature he points out should have waited and at best could have acted if there is impeachable and empirical evidence warranting such a drastic incursion into the vested right of the home buyer he also highlights that in law there can only be one default a home buyer who before the amendment could by himself set the law into motion is now left at the mercy of similarly circumstanced persons which itself is rendered impossible by the absence of an information generating mechanism which is accessible he would also point out that the dates of the agreements of 4 1973 1 scc 500 23 different home buyers would be different depending on the dates of the agreements being different it is incontrovertible he points out that the date of default would be different he would pose the question as to how in such circumstances the law could insist upon a home buyer assembling together other homebuyers and that too one hundred in number or one tenth of the total number of allottees allottees are spread all over the world it is inconceivable as to how the provision can be worked in a reasonable and fair manner 21 shri rahul rathore learned counsel for the petitioners in some of the writ petition would apart adopting the contentions contend that insolvency has been predicated project wise he would submit that under the impugned amendment the allottees are to be culled out from among a particular project in other words the requirement under the provision is that the applicants must be 100 allottees or one tenth of the allottees of a particular real estate project he would point out that a corporate body may be having different projects if that be so there is no 24 rationale in insisting that the said corporate body has become insolvent qua the particular project in which the applicants are interested insolvency in other words would be a financial malaise which afflicts the corporate body as a whole qua all its projects if the allottees can be drawn from other projects undertaken by the company then maybe it may have rendered the provisions more reasonable appears to be the argument of the petitioner but this is not so the provisions are irrational the home buyer is a person who invests his life time savings he is in a weak position already instead of conferring protection on him the homebuyer is being saddled with more oppressive and burdensome conditions there is no platform for the exchange and availability of information with details regarding the allottees the limitation act applies as held by this court he would also appear to rely on the theory of a single default the conditions are impossible to fulfil the home buyer is being shut out at the very threshold 25 22 shri dinesh c pandey learned counsel would also contend that section 6 of the general clauses act would protect all the pending applications 23 shri dhruv gupta learned counsel appearing in w p c no 177 of 2020 complained against retrospectivity spelt out by the impugned provisions the right which was a vested right was substantive in nature the law could only be prospective he draws our attention to the judgment of this court in b k educational services p ltd v parag gupta associates5 he also lays store by the principles laid down by this court in swiss ribbon pvt ltd ors v union of india ors 6 and also in the pioneer supra 24 ms purti marwaha gupta learned counsel in w p c no 75 of 2020 adopted the contentions of shri krishna mohan menon learned counsel would make submissions qua section 32a which is yet another provision which is challenged she drew our attention to section 2 u and 20 of the prevention of money laundering act 2002 she would submit but for section 32a the properties 5 2019 11 scc 633 6 2019 4 scc 17 26 which are acquired could be attached but that is pre empted by section 32a the civil remedies open are taken away in regard to acts of crime section 14 of the act which deals with moratorium is referred to in this regard 25 shri a d n rao learned counsel would submit that a substantive right cannot be taken away by a procedural requirement the home buyers have been conferred the substantive right to invoke the code by moving an application under section 7 this right cannot be taken away by providing for a procedure and what is more which is impossible to attain he drew our attention to the decision of this court in garikapati veeraya v n subbiah choudhry7 he would submit that the law as on the date of initiation should prevail and it cannot be taken away by the amendment which is made subsequently apparently the learned counsel is making his submission qua the 3rd proviso inserted in section 7 1 of the code he seeks to drawn support from judgment of this court in thirumalai 7 air 1957 sc 540 1957 scr 488 27 chemicals limited v union of india and others8 he also contends that a proviso cannot override the main provision in this regard he relied upon the judgment of this court in delhi metro rail corporation ltd v tarun pal singh and others9 he would in fact point out with reference to facts that the orders were reserved in the application under section 7 in november 2019 the proviso came to be inserted on 28th december 2019 resultantly when the order came to be pronounced regarding admission of the application under section 7 the authorities stood overtaken by the amendment all of this is for no fault of the litigant who at the time when the application was moved was governed by a different regime which did not contain the harsh and arbitrary provisions he would also point out practical difficulty in finding out other allottees 26 smt tasleem ahmadi learned counsel would submit that an amendment as impugned in this case has the effect of setting at nought the directions and decision 8 2011 6 scc 739 9 2018 14 scc 161 28 of this court she would complain that an amendment has been engrafted without removing the premise on which pioneer was decided she drew our attention to the judgment of this court in state of karnataka and others v the karnataka pawn brokers association and others10 paragraphs 16 20 23 and 24 27 shri aditya parolia learned counsel would submit that while the legislature has the freedom to experiment the power does not exist beyond certain limits it cannot create provisions which are arbitrary unequals are treated equally the objections of the home buyers were not discussed the draft was not discussed in this regard he points to the dissent of shri tk rangarajan there is no intelligible differentia to distinguish the home buyers from the other creditors the class action under the consumer protection act is denied under the code even a decree holder under the aegis of rera is denied relief he also points out the lack of information required to properly work the statute allottees are 10 2018 6 scc 363 29 spread across the globe the real estate investor siphons off major amounts the default is in rem 28 shri pallav mongia learned counsel would point out that home buyers would continue to be financial creditors the proviso cannot take away the said right unequals are being made equal information regarding allottees is not available he refers to the report of the parliamentary committee he also complains about the absence of undisputed documents as regards information relating to allottees he would make the point that the code itself does not provide for a mechanism for a home buyer to glean information he is being called upon to collect information with reference to another enactment namely rera this should be treated as fatal to the constitutionality of the impugned amendments he would further submit that the provision is bad for it being vague the argument of vagueness is addressed with reference to the following 1 the date of default 2 the court fee payable when there is more than one applicant 30 3 the threshold amount of default stipulated under section 4 namely rs one crore at present 4 he also would complain against the retrospectivity involved 29 shri rana mukherjee learned senior counsel appears in writ petition where first proviso is called in question he represents the cause of money lenders he drew our attention to paragraph 43 of the pioneer supra he pointed out that the requirement that the applicants must be of the same class and there must be 100 of them rendered the provisions unachievable he drew our attention to sections 244 and 245 of the companies act 2013 he pointed out that the threshold under the said act could be relaxed whereas under the code the law giver has inflicted the requirement as an inflexible mandate he also complained of there being no information qua the requirement of 10 percent he drew our attention to rule 8a he would submit that actually parliament had in mind the home buyer the insertion of the 1st proviso betrays a mistaken roping in of the category of creditors represented by his 31 clients he sought to draw considerable support from the judgment of this court in vasant ganpat padvave d by lrs ors v anant mahadev sawant d through lrs ors 11 of his compilation he commended for our acceptance the principle that the law must be considered having regard to consequences it produces he requested that the court may bear in mind the requirement that the law in its application must produce fair results 30 per contra the stand of the union as projected through smt madhavi divan learned asg and through the written submissions submitted can be summed up as follows the impugned amendments are perfectly valid the amendments are part of an economic measure there was a report of an expert committee the expert committee recommended imposing a threshold amendment in respect of certain classes of financial creditors it is modelled on the 11 2019 12 scale 572 32 companies act there are other statutory examples of such threshold requirements the impugned provisions conform to the principle of reasonable classification intelligible differentia distinguishes the allottees and debenture holders and security holders covered by the provisos from the other financial creditors the amendments were necessitated from experience there is a rational nexus between the differentia and the objects the amendment as far as the impugned provisos are concerned are essentially an extension of sections 21 6a and section 25a of the code under which the debenture holders and security holders on the one hand and allottees on the other are treated differently the provisions are not manifestly arbitrary they are indeed workable having regard to the explanation in section 7 1 the default qua any financial creditor even if he is not an applicant can be made use of by other allottees or debenture holders and security holders 33 31 it is pointed out further that the constitutional validity of sections 21 6a and 25a of the code was upheld by this court in pioneer supra in this regard attention is also drawn to the observations of this court in paragraph 43 of pioneer supra on the strength of the said observations it is contended that this court has recognized that allottees home buyers are not a homogenous group this court also recognized it is pointed out that the deposit holders and security holders form a sub class class of financial creditors who are treated a little differently on account of the sheer number of such creditors coupled with the heterogeneity within the group that may cause difficulties in the decision making process the provisions were introduced for ironing out the logistical procedural complications that may arise on account of the peculiar nature of these groups the provisions impugned in the present litigation merely supplement sections 21 6a and section 25a of the code the rationale in the said judgment should be applied in this case also it is further pointed out that the challenge in pioneer supra was mounted by the 34 developers and the home buyers accepted the provisions as being necessary to iron out the creases the asg drew support from judgments of this court which are as follows i ameerunnissa begum and others v mahboob begum and others12 ii state of jammu and kashmir v triloki nath khosa and others13 iii murthy match works and others v assistant collector of central excise and another14 iv ajoy kumar banerjee and others v union of india and others15 v ashutosh gupta v state of rajasthan and others16 32 it is contended that there is a rational nexus with the objects of the code insofar as the impugned provisos are concerned and the classification is permissible under article 14 of the constitution she 12 1953 scr 404 13 1974 1 scc 19 14 1974 4 scc 428 15 1984 3 scc 127 16 2002 4 scc 34 35 drew our attention to the statements of objects and reasons appended to the amendment bill to the code 2019 which introduced sub section 3a in section 25a it reads as follows 2 the preamble to the code lays down the objects of the code to include the insolvency resolution in a time bound manner for maximisation of value of assets in order to balance the interests of all the stakeholders concerns have been raised that in some cases extensive litigation is causing undue delays which may hamper the value maximisation there is a need to ensure that all creditors are treated fairly without unduly burdening the adjudicating authority whose role is to ensure that the resolution plan complies with the provisions of the code various stakeholders have suggested that if the creditors were treated on an equal footing when they have different preinsolvency entitlements it would adversely impact the cost and availability of credit further views have also been obtained so as to bring clarity on the voting pattern of financial creditors represented by the authorised representative d to insert sub section 3a in section 25a of the code to provide that an authorised representative under sub section 6a of section 21 will cast the vote for all financial creditors he represents in accordance with the decision taken by a vote of more than fifty per 36 cent of the voting share of the financial creditors he represents who have cast their vote in order to facilitate decision making in the committee of creditors especially when financial creditors are large and heterogeneous group 33 thus the statement of objects and reasons recognizes the heterogeneity within the class and the need to streamline smoothen and facilitate the process so as to avoid unnecessary delay there is also a concern about extensive litigation causing delays and hampering the maximization of value it is pointed out multiple applications by members of this large class of financial creditors in such a class would also add to the burden of the adjudicating authority choke up its docket and delay the process this would be counterproductive to the object of the code which seeks to ensure time bound resolution process for the maximization of total value of assets reference is made to the report of the insolvency law committee dated february 2020 which recommended the insertion of a minimum number of financial creditors in a class it reads as follows 37 ii application for initiation of cirp by class of creditors as cirp can be initiated by a single financial creditor such as a homebuyer or a deposit holder that belongs to a certain class of creditors following a minor dispute it might exert undue pressure on the corporate debtor and might jeopardize the interests of the other creditors in the class who are not in favor of such initiation it is being recommended that there should be a requirement for a minimum threshold number of certain financial creditors in a class for initiation of the cirp so an amendment to section 7 1 to provide that for a class of creditors falling within clause a or b of section 21 6a the cirp may only be initiated by at least a hundred such creditors or 10 percent of the total number of such creditors in a class 4 application for initiation of cirp by classes of creditors 4 1 section 7 of the code allows a financial creditor to initiate a cirp against a corporate debtor upon the occurrence of default either by itself or jointly with other financial creditors 4 2 it was brought to the committee that for classes of financial creditors referred to in sub clauses a and b of section 21 6a of the code such as deposit holders bondholders and homebuyers there was a concern that the cirp can be initiated by only one or few such financial creditors following minor disputes this may exert undue pressure on the corporate debtor and has the potential to jeopardise the interests of the other creditors in the class who are 38 not in favour of the initiation of cirp this may also impose additional burden upon the adjudicating authority to hear objections to heavily disputed applications the committee noted that this may be antithetical to the value of a time bound resolution process as the already over burdened adjudicating authorities are unable to list and admit all such cases filed before them 4 3 the committee discussed that classes of creditors such as homebuyers and deposit holders have every right as financial creditors to initiate cirp against a corporate debtor that has defaulted in the repayment of its dues however it was acknowledged that initiation of cirp by classes of similarly situated creditors should be done in a manner that represents their collective interests it was felt that a cirp should be initiated only where there is enough number of such creditors in a class forming a critical mass that indicates that there is in fact largescale agreement that the issues against a corporate entity need to be resolved by way of a cirp under the code this may well be a more streamlined way of allowing a well defined class of creditors to agree upon initiating what is a collective process of resolution under the code 4 4 in this regard and specific to the interests of homebuyers the committee also noted that in cases where a homebuyer cannot file an application for initiation of cirp for having failed to reach the aforesaid critical mass she would still have access to alternative fora under the rera and under consumer protection laws for instance as recognised by the supreme 39 court in the case of pioneer urban land and infrastructure limited and ors v union of india the remedies under the code and under the rera operate in completely different spheres the code deals with proceedings in rem under which homebuyers may want the corporate debtor s management to be removed and replaced so that the corporate debtor can be rehabilitated on the other hand the rera protects the interests of the individual investor in real estate projects by ensuring that homebuyers are not left in the lurch and get either compensation or delivery of their homes thus if there is a failure to reach a critical mass for initiation of cirp it may indicate that in such cases another remedy may be more suitable 4 5 accordingly it was agreed that there should be a requirement to have the support of a threshold number of financial creditors in a class for initiation of cirp 4 6 in this regard the committee considered if a cue may be taken from the requirements for filing of class actions suits as provided under the companies act 2013 class action suits may inter alia be filed by a hundred members or depositors or by at least 5 per cent of the total number of members or depositors of the company 14 similar to this requirement and keeping with the extant situation of classes of creditors under the code it was suggested that section 7 of the code could be amended in respect of such classes of creditors to allow initiation by a collective number of at least a hundred such creditors or at least ten percent of the total number of such 40 creditors forming part of the same class thus the committee agreed that section 7 1 of the code may be amended to provide that for classes of creditors falling within clauses a and b of section 21 6a the cirp may only be initiated by at least a hundred such creditors or ten percent of the total number of such creditors in a class 4 7 the committee also noted that the collective number of homebuyers that form the threshold amount for initiation of a cirp should belong to the same real estate project this would allow homebuyers that have commonality of interests i e allottees under the same real estate project to come together to take action for initiating cirp against a real estate developer thus in such cases the cirp may be initiated by at least a hundred such allottees or ten percent of the total number of such allottees belonging to the same real estate project 4 8 however to ensure that there is no prejudice to the interests of any such creditor in a class whose application has already been filed but not admitted by the adjudicating authority the committee agreed that a certain grace period may be provided within which such creditor in a class may modify and file its application in accordance with the above stated threshold requirements however if the creditor is unable to fulfil the threshold requirements to file such modified application within the grace period provided the application filed by such creditor would be deemed withdrawn emphasis supplied 41 34 in the statement of objects and reasons to the second amendment bill 2019 promulgated as an ordinance and thereafter as the impugned act it was inter alia stated that it was necessitated to prevent potential abuse of the code by certain classes of financial creditors inter alia this was necessary to prevent the derailing of the time bound cirp which was designed to secure the maximization of value of the assets the provision only supplements the protection under sections 65 and 75 of the code the intelligible differentia is projected as follows i numerosity ii heterogeneity iii lack of special expertise and individuality in decision making it is sought to be contrasted with institutional decision making which is associated with banks and financial institutions iv typicality in determination of default in other words in the case of banks and financial institutions records of public utilities would show a default in the case of allottees records 42 must be accessed through data publicly available under rera 35 the object and rationale of the impugned provisions are stated to be as follows i preventing multiple individual applications which has the effect of not only crowding the docket of the adjudicating authority and further holding up a process in which time is of the essence ii safeguarding the interest of hundreds or even thousands of allottees who may oppose the application of a single home buyer iii balancing the interest of members of the same sub class as also other financial creditors and other operational creditors the availability of remedies to the members of the sub class under rera in the case of allottees iv lastly the process becomes smoother and cost effective unnecessary financial bleeding of the corporate debtor who is already in difficulty is avoided 43 36 time is of the essence of the code proceedings are in the nature of proceedings in rem it impacts the rights of creditors including similarly placed creditors it is therefore reasonable and logical to place the threshold the minimum threshold is a minimum requirement the threshold is kept low and reasonable this court has upheld subclassification provided there is a rational basis she drew support from the following decisions i indra sawhney and others v union of india and others17 ii lord krishna sugar mills limited and another v union of india and another18 iii state of kerala and another v n m thomas and others19 iv state of west bengal and another v rash behari sarkar and another20 v state of kerala v aravind ramakant modawdakar and others21 17 1992 supp 3 scc 217 18 1960 1 scr 39 19 1976 2 scc 310 20 1993 1 scc 479 21 1999 7 scc 400 44 37 she sought to distinguish the judgment of this court in sansar chand atri v state of punjab and another22 which was relied on by the petitioners on the basis that this court in the said case only frowned upon creating a class within a class without rational basis in this case there was a rational basis for creating a sub class differential treatment is also contemplated under uncitral legislative guide and the guidelines 38 there is no basis in the contention that the amendments go against the law laid down in pioneer supra the question involved in the said case was not whether there can be a different treatme truncated reportable in the supreme court of india civil original jurisdiction writ petition c no 26 of 2020 manish kumar petitioner s versus union of india and another respondent s with writ petition c no 53 2020 writ petition c no 28 2020 writ petition c no 47 2020 writ petition c no 27 2020 writ petition c no 73 2020 writ petition c no 328 2020 writ petition c no 210 2020 writ petition c no 191 2020 writ petition c no 164 2020 writ petition c no 163 2020 writ petition c no 166 2020 writ petition c no 173 2020 writ petition c no 182 2020 writ petition c no 176 2020 writ petition c no 177 2020 writ petition c no 257 2020 writ petition c no 341 2020 writ petition c no 267 2020 writ petition c no 333 2020 1 writ petition c no 337 2020 writ petition c no 388 2020 writ petition c no 402 2020 writ petition c no 390 2020 writ petition c no 393 2020 writ petition c no 783 2020 transferred case c no 228 2020 writ petition c no 579 2020 writ petition c no 806 2020 writ petition c no 714 2020 writ petition c no 642 2020 writ petition c no 805 2020 writ petition c no 19 2020 writ petition c no 33 2020 writ petition c no 75 2020 writ petition c no 165 2020 writ petition c no 850 2020 writ petition c no 374 2020 writ petition c no 229 2020 writ petition c no 228 2020 writ petition c no 209 2020 j u d g m e n t k m joseph j 1 the petitioners have approached this court under article 32 of the constitution of india they call in 2 question sections 3 4 and 10 of the insolvency and bankruptcy code amendment act 2020 hereinafter referred to as the impugned amendments for short section 3 of the impugned amendment amends section 7 1 of the insolvency and bankruptcy code 2016 hereinafter referred to as the code for short section 4 of the impugned amendment incorporates an additional explanation in section 11 of the code section 10 of the impugned amendment inserts section 32a in the code 2 section 7 1 of the code before the amendment read as follows 7 initiation of corporate insolvency resolution process by financial creditor 1 a financial creditor either by itself or jointly with other financial creditors or any other person on behalf of the financial creditor as may be notified by the central government may file an application for initiating corporate insolvency resolution process against a corporate debtor before the adjudicating authority when a default has occurred explanation for the purposes of this sub section a default includes a default in respect of a financial debt owed not only to 3 the applicant financial creditor but to any other financial creditor of the corporate debtor the amendment to the same by section 3 of the impugned amendment incorporates 3 provisos to section 7 1 which reads as under provided that for the financial creditors referred to in clauses a and b of sub section 6a of section 21 an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent of the total number of such creditors in the same class whichever is less provided further that for financial creditors who are allottees under a real estate project an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent of the total number of such allottees under the same real estate project whichever is less provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the adjudicating authority before the commencement of the insolvency and bankruptcy code amendment act 2020 such application shall be modified to 4 comply with the requirements of the first or second proviso within thirty days of the commencement of the said act failing which the application shall be deemed to be withdrawn before its admission 3 section 11 before the amendment read as follows 11 persons not entitled to make application the following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this chapter namely a a corporate debtor undergoing a corporate insolvency resolution process or b a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application or c a corporate debtor or a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this chapter or d a corporate debtor in respect of whom a liquidation order has been made explanation 1 i for the purposes of this section a corporate debtor includes a corporate applicant in respect of such corporate debtor the explanation which was inserted through the impugned amendment reads as follows 5 explanation ii for the purposes of this section it is hereby clarified that nothing in this section shall prevent a corporate debtor referred to in clauses a to d from initiating corporate insolvency resolution process against another corporate debtor 4 section 32a inserted through the impugned amendment reads as follows 32a 1 notwithstanding anything to the contrary contained in this code or any other law for the time being in force the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the adjudicating authority under section 31 if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not a a promoter or in the management or control of the corporate debtor or a related party of such a person or b a person with regard to whom the relevant investigating authority has on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence and has submitted or filed a report or a complaint to the relevant statutory authority or court provided that if a prosecution had been instituted during the corporate 6 insolvency resolution process against such corporate debtor it shall stand discharged from the date of approval of the resolution plan subject to requirements of this sub section having been fulfilled provided further that every person who was a designated partner as defined in clause j of section 2 of the limited liability partnership act 2008 or an officer who is in default as defined in clause 60 of section 2 of the companies act 2013 or was in any manner incharge of or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor s liability has ceased under this sub section 2 no action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the corporate insolvency resolution process of the corporate debtor where such property is covered under a resolution plan approved by the adjudicating authority under section 31 which results in the change in control of the corporate debtor to a person or sale of liquidation assets under the provisions of chapter iii of part ii of this code to a person who was not 7 i a promoter or in the management or control of the corporate debtor or a related party of such a person or ii a person with regard to whom the relevant investigating authority has on the basis of material in its possession reason to believe that he had abetted or conspired for the commission of the offence and has submitted or filed a report or a complaint to the relevant statutory authority or court explanation for the purposes of this sub section it is hereby clarified that i an action against the property of the corporate debtor in relation to an offence shall include the attachment seizure retention or confiscation of such property under such law as may be applicable to the corporate debtor ii nothing in this sub section shall be construed to bar an action against the property of any person other than the corporate debtor or a person who has acquired such property through corporate insolvency resolution process or liquidation process under this code and fulfils the requirements specified in this section against whom such an action may be taken under such law as may be applicable 3 subject to the provisions contained in sub sections 1 and 2 and notwithstanding the immunity given in 8 this section the corporate debtor and any person who may be required to provide assistance under such law as may be applicable to such corporate debtor or person shall extend all assistance and co operation to any authority investigating an offence committed prior to the commencement of the corporate insolvency resolution process who are the petitioners 5 more than the lion s share of the petitioners are allottees under real estate projects and hereinafter referred to as allotees they have trained the constitutional gun at the impugned provisos 6 under the second proviso a new threshold has been declared for an allottee to move an application under section 7 for triggering the insolvency resolution process under the code the threshold is the requirement that there should be at least 100 allottees to support the application or 10 per cent of the total allottees whichever is less moreover they should belong to the same project almost all except in two petitions the petitioners also had under the erstwhile regime which permitted even a single allottee 9 to move an application under section 7 filed petitions singly or with less than the number required under the proviso and they are visited with the provisions of the third proviso as per which such of those applications under section 7 which had not been admitted would stand withdrawn within 30 days if the newly declared threshold of 100 allottees or 10 per cent of the allottee whichever is lower was not garnered by the applicant applicants 7 in some of the petitions the petitioners are money lenders that is they have stepped in to provide finance for the real estate projects they are also visited with the requirement which is imposed upon them under the first impugned proviso which is on similar lines as those comprised in the second proviso 8 then there is no doubt section 32a which stands impugned by the creditors and allottees the code 9 the code was enacted in the year 2016 it is one of the most important economic measures contemplated 10 by the state to prevent insolvency to provide last mile funding to revive ailing businesses maximise value of assets of the entrepreneurs balance the interest of all the stakeholders and even to alter the order of priority of payment of government dues the code is divided into five parts the first part is shortest portion part ii deals with what we are concerned with in these cases and it purports to deal with insolvency resolution and liquidation for corporate persons corporate person has been defined in section 3 7 as follows 3 7 corporate person means a company as defined in clause 20 of section 2 of the companies act 2013 a limited liability partnership as defined in clause n of sub section 1 of section 2 of the limited liability partnership act 2008 or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider 10 section 3 8 defines corporate debtor which provides that a corporate debtor means a person who owes a debt to any person 11 11 we may notice that chapter ii of part ii which consists of sections 6 to 32 deal with the corporate insolvency resolution process chapter iii deals with ordinary liquidation process in regard to corporate person chapter iv of part ii consisting of four sections deal with fast track insolvency resolution process chapter v which consists of section 59 only deals with voluntary liquidation of corporate person chapter vi deals with miscellaneous aspects chapter vii part ii deals with penalties 12 part iii deals with insolvency resolution and bankruptcy code for individuals and partnership firms it may be noticed at once that partnership firms with limited liability as defined in the limited liability partnership act 2008 fall within the definition of the word corporate person and insolvency and liquidation process in regard to the same is found in part ii of the code it is in regard to insolvency resolution and bankruptcy for the other partnership firms which one has to look to the provisions of part iii part iii begins with section 78 and ends with section 187 the further provisions relate to the regulation of 12 insolvency professional agencies and information utilities they are all key instrumentalities for the effective working of the code equally it may be apposite to bear in mind section 238a it reads as follows 238a limitation the provisions of the limitation act 1963 36 of 1963 shall as far as may be apply to the proceedings or appeals before the adjudicating authority the national company law appellate tribunal the debt recovery tribunal or the debt recovery appellate tribunal as the case may be 13 shri krishna mohan menon learned counsel for the petitioners allottees in some of the petitions has addressed the following submissions before us the impugned amendment clearly falls foul of the mandate of articles 14 19 1 g 21 and 300a of the constitution the amendment by virtue of section 3 of the amendment act introducing the second proviso in section 7 1 of the code makes a hostile discrimination between financial creditors the category to which the petitioners belong and the other financial creditors 13 secondly it is contended that the amendment imposing a threshold restriction is afflicted with the vice of palpable and hostile discrimination qua operational creditors the purported protection sought to be accorded to the real estate developer cannot form the premise for inflicting violation of constitutionally protected freedom under article 19 1 g just as much as it also constitutes an insupportable invasion of the grand mandate of equality next he would submit that there are inherent leakages in the impugned provisions which would make it unworkable thereafter learned counsel would submit that the impugned amendment is also bad in law for the reason that it is manifestly arbitrary yet another argument addressed by shri krishna mohan menon learned counsel is that the amendment has the legally pernicious effect of creating a class within a class a result which is frowned upon by the law 14 14 learned counsel would expatiate and submit that under the code the law provides for a period of 14 days for the adjudicating authority to decide whether an application under section 7 should be admitted section 12 declares an inflexible time limit for the insolvency resolution process to be terminated the whole purport of the provisions of the code and the manner in which it is structured is geared to achieve a laudable object the code aims at improving the ranking of india in the matter of ease of doing business it is an economic measure which is intended to transform india into a country which would attract capital and investment the code has indeed resulted in a transformation of attitudes of the key players in that it has come to be perceived as a law not merely on paper but one with teeth to it he would point out that this court in its decision in the pioneer s case pioneer urban land and infrastructure ltd and another v union of india and others1 has elaborately dealt with the apprehension that allowing the home buyers 1 2019 8 scc 416 15 like the petitioners who finance the builder s activities to invoke the cirp process will lead to misuse of the provisions and allayed the unfounded fears yet the legislature has ventured to place unjustifiable clogs on the right of one category of financial creditors alone which is impermissible the spectre of a speculative investor running riot and playing havoc has been adequately addressed by this court there is no worthwhile data of misuse by home buyers he points out the judgments passed by nclat where the financial creditors who are home buyers approach the tribunal and the cases reflect gross and inordinate delay of nearly five years justifying the approach made by the home buyers under the code in other words there were genuine cases where the debtor had become insolvent and hence the home buyer had complete justification in knocking at the doors of the competent tribunal under the code he took us through the reports of the parliamentary committee and complained that no reasons are discernible to justify the amendments equally he commended for our 16 acceptance the observations in the dissent notes and contended that they fortify the submissions 15 in regard to the comparison sought to be made with similar requirements in sections 397 398 read with 399 of the companies act 1956 and section 241 and 244 of the companies act 2013 he would submit that there are significant distinctions 16 firstly he would submit that in the case of shareholders approaching the tribunal under the companies act they would be armed with the details regarding shareholding which are always available having regard to the scheme of the companies act on the other hand he points that in regard to home buyers who have sunk their hard earned money in real estate projects there is no system under which they could obtain data or information regarding the persons similarly circumstanced and whose co operation and support is necessary under the impugned amendment to activise the code 17 secondly he would submit that having regard to the explanation in section 244 of the companies act 2013 it brings about clarity in regard to the 17 situation where there is a joint holding the absence of any such similar provision in section 7 of the code is emphasised in an attempt at persuading the court to overturn the law he would further point out the practical difficulties in the working of the amended law he submits that the date of default of various home buyers may be different therefore to forge a common complaint impelling a group of home buyers to come together is impracticable and not workable he would submit that legislature cannot be permitted to take away through one hand what it has given by the other 18 learned counsel would further contended that as far as the third proviso is concerned while accepting the position that the 14 days period for disposal of the matter under the code has been understood to be directory and not mandatory at the same time it cannot be the law that a case should grace the docket endlessly and never witness an end and the retrospectivity which it reflects clearly renders it arbitrary 18 19 shri shikhil suri learned counsel for the petitioner in writ petition civil no 191 of 2020 would submit that the impugned amendment is arbitrary being in the teeth of the principles laid down in pioneer supra the object of the law would stand defeated he contends the ordinance would not only deprive the petitioner of her right under section 7 but it also violates article 14 of the constitution of india the threshold limit is unreasonable and arbitrary it is excessive and irrational it is not in public interest he also points out that there exists adequate shield against a single allottee misusing the code the threshold is thrust upon only on the home buyer and is not applicable across the board for other financial creditors it is discriminatory there is no rationale it treats equals unequally and unequals as equals there is no intelligible differentia the law does not permit classes among financial creditors there is breach of the guarantee of equal protection of law the threshold in section 4 namely default of rupees one crore is the one which applies to all creditors it 19 is inexplicable as to how only in regard to home buyers a different threshold should be insisted upon the remedy of the home buyer is defeated the ordinance was brought in haste without proper discussion and debate the amendment takes away the vested right of the home buyers there is no intelligible differentia bearing a nexus with the object and purpose of the act he also emphasised the practical difficulties involved in arranging the necessary numerical strength under the impugned provision 20 shri piyush singh learned counsel for the petitioners would submit that once the right is conferred to make an application then it cannot come conditioned with threshold limit as is provided in the impugned provisos secondly he would point out that there is manifest arbitrariness that apart he would also contend that there is hostile discrimination qua other corporate debtor the builder who is a corporate debtor in other words is given a more favourable treatment than other corporate debtors which is afflicted with the vice of hostile discrimination he also complained of both under and over inclusiveness 20 in the impugned provisions next learned counsel submits that the very object is discriminatory drawing our attention to both chitra sharma and others v union of india and others2 and pioneer supra he would highlight that having regard to the background in which the rights of the home buyer was recognised as being one of that of a financial creditor the amendment is clearly impermissible he would also submit that having regard to the stand taken by the government in the case before this court in particular pioneer supra the principles of promissory estoppel will apply and prevent enactment of the impugned provisions he would expatiate and submit that the conditions which have been imposed render the remedy illusory he drew our attention to order 1 rule 8 of the code of civil procedure and also took us to the explanation therein he would submit that the proviso is not on similar lines as order 1 rule 8 this is for the reason that under the procedure under order 1 rule 8 the numerical stipulation in the impugned provisos is not insisted upon once persons 2 2018 18 scc 575 21 having same interest institute a civil suit after following the procedure all persons having the same interest become involved and what is more would be bound by the decision section 12 of the consumer protection act which also captures and embodies the principle of order 1 rule 8 ensures the protection of class interest and also protect class interest without putting stiff barriers as threshold limits as done by the impugned amendment he pointed out that the real estate owners do not take any loan from financial institutions they raise capital exclusively from the allottees virtually in such circumstances to put this threshold limit is clearly impermissible he drew our attention to the judgment of the court in motilal padampat sugar mills co ltd v state of u p3 to buttress his submission regarding availability of principles of promissory estoppel there is manifest arbitrariness in the provisions he complained that the rera has not been constituted in all the states he also made an attempt at pointing out the perception that the amendment is to confer an unmerited advantage 3 1979 2 scc 409 22 on the builder this he purported to do by drawing our attention to an article in a newspaper he essentially projected this argument as a thinly disguised argument of malice against the law giver he also sought to draw support from the judgment of this court in nagpur investment trust and others v vithal rao and others4 he reiterated the principle of hostile discrimination he drew our attention to the definition of the word allottee in rera it is here that he complained of the provision being under inclusive and over inclusive the legislature he points out should have waited and at best could have acted if there is impeachable and empirical evidence warranting such a drastic incursion into the vested right of the home buyer he also highlights that in law there can only be one default a home buyer who before the amendment could by himself set the law into motion is now left at the mercy of similarly circumstanced persons which itself is rendered impossible by the absence of an information generating mechanism which is accessible he would also point out that the dates of the agreements of 4 1973 1 scc 500 23 different home buyers would be different depending on the dates of the agreements being different it is incontrovertible he points out that the date of default would be different he would pose the question as to how in such circumstances the law could insist upon a home buyer assembling together other homebuyers and that too one hundred in number or one tenth of the total number of allottees allottees are spread all over the world it is inconceivable as to how the provision can be worked in a reasonable and fair manner 21 shri rahul rathore learned counsel for the petitioners in some of the writ petition would apart adopting the contentions contend that insolvency has been predicated project wise he would submit that under the impugned amendment the allottees are to be culled out from among a particular project in other words the requirement under the provision is that the applicants must be 100 allottees or one tenth of the allottees of a particular real estate project he would point out that a corporate body may be having different projects if that be so there is no 24 rationale in insisting that the said corporate body has become insolvent qua the particular project in which the applicants are interested insolvency in other words would be a financial malaise which afflicts the corporate body as a whole qua all its projects if the allottees can be drawn from other projects undertaken by the company then maybe it may have rendered the provisions more reasonable appears to be the argument of the petitioner but this is not so the provisions are irrational the home buyer is a person who invests his life time savings he is in a weak position already instead of conferring protection on him the homebuyer is being saddled with more oppressive and burdensome conditions there is no platform for the exchange and availability of information with details regarding the allottees the limitation act applies as held by this court he would also appear to rely on the theory of a single default the conditions are impossible to fulfil the home buyer is being shut out at the very threshold 25 22 shri dinesh c pandey learned counsel would also contend that section 6 of the general clauses act would protect all the pending applications 23 shri dhruv gupta learned counsel appearing in w p c no 177 of 2020 complained against retrospectivity spelt out by the impugned provisions the right which was a vested right was substantive in nature the law could only be prospective he draws our attention to the judgment of this court in b k educational services p ltd v parag gupta associates5 he also lays store by the principles laid down by this court in swiss ribbon pvt ltd ors v union of india ors 6 and also in the pioneer supra 24 ms purti marwaha gupta learned counsel in w p c no 75 of 2020 adopted the contentions of shri krishna mohan menon learned counsel would make submissions qua section 32a which is yet another provision which is challenged she drew our attention to section 2 u and 20 of the prevention of money laundering act 2002 she would submit but for section 32a the properties 5 2019 11 scc 633 6 2019 4 scc 17 26 which are acquired could be attached but that is pre empted by section 32a the civil remedies open are taken away in regard to acts of crime section 14 of the act which deals with moratorium is referred to in this regard 25 shri a d n rao learned counsel would submit that a substantive right cannot be taken away by a procedural requirement the home buyers have been conferred the substantive right to invoke the code by moving an application under section 7 this right cannot be taken away by providing for a procedure and what is more which is impossible to attain he drew our attention to the decision of this court in garikapati veeraya v n subbiah choudhry7 he would submit that the law as on the date of initiation should prevail and it cannot be taken away by the amendment which is made subsequently apparently the learned counsel is making his submission qua the 3rd proviso inserted in section 7 1 of the code he seeks to drawn support from judgment of this court in thirumalai 7 air 1957 sc 540 1957 scr 488 27 chemicals limited v union of india and others8 he also contends that a proviso cannot override the main provision in this regard he relied upon the judgment of this court in delhi metro rail corporation ltd v tarun pal singh and others9 he would in fact point out with reference to facts that the orders were reserved in the application under section 7 in november 2019 the proviso came to be inserted on 28th december 2019 resultantly when the order came to be pronounced regarding admission of the application under section 7 the authorities stood overtaken by the amendment all of this is for no fault of the litigant who at the time when the application was moved was governed by a different regime which did not contain the harsh and arbitrary provisions he would also point out practical difficulty in finding out other allottees 26 smt tasleem ahmadi learned counsel would submit that an amendment as impugned in this case has the effect of setting at nought the directions and decision 8 2011 6 scc 739 9 2018 14 scc 161 28 of this court she would complain that an amendment has been engrafted without removing the premise on which pioneer was decided she drew our attention to the judgment of this court in state of karnataka and others v the karnataka pawn brokers association and others10 paragraphs 16 20 23 and 24 27 shri aditya parolia learned counsel would submit that while the legislature has the freedom to experiment the power does not exist beyond certain limits it cannot create provisions which are arbitrary unequals are treated equally the objections of the home buyers were not discussed the draft was not discussed in this regard he points to the dissent of shri tk rangarajan there is no intelligible differentia to distinguish the home buyers from the other creditors the class action under the consumer protection act is denied under the code even a decree holder under the aegis of rera is denied relief he also points out the lack of information required to properly work the statute allottees are 10 2018 6 scc 363 29 spread across the globe the real estate investor siphons off major amounts the default is in rem 28 shri pallav mongia learned counsel would point out that home buyers would continue to be financial creditors the proviso cannot take away the said right unequals are being made equal information regarding allottees is not available he refers to the report of the parliamentary committee he also complains about the absence of undisputed documents as regards information relating to allottees he would make the point that the code itself does not provide for a mechanism for a home buyer to glean information he is being called upon to collect information with reference to another enactment namely rera this should be treated as fatal to the constitutionality of the impugned amendments he would further submit that the provision is bad for it being vague the argument of vagueness is addressed with reference to the following 1 the date of default 2 the court fee payable when there is more than one applicant 30 3 the threshold amount of default stipulated under section 4 namely rs one crore at present 4 he also would complain against the retrospectivity involved 29 shri rana mukherjee learned senior counsel appears in writ petition where first proviso is called in question he represents the cause of money lenders he drew our attention to paragraph 43 of the pioneer supra he pointed out that the requirement that the applicants must be of the same class and there must be 100 of them rendered the provisions unachievable he drew our attention to sections 244 and 245 of the companies act 2013 he pointed out that the threshold under the said act could be relaxed whereas under the code the law giver has inflicted the requirement as an inflexible mandate he also complained of there being no information qua the requirement of 10 percent he drew our attention to rule 8a he would submit that actually parliament had in mind the home buyer the insertion of the 1st proviso betrays a mistaken roping in of the category of creditors represented by his 31 clients he sought to draw considerable support from the judgment of this court in vasant ganpat padvave d by lrs ors v anant mahadev sawant d through lrs ors 11 of his compilation he commended for our acceptance the principle that the law must be considered having regard to consequences it produces he requested that the court may bear in mind the requirement that the law in its application must produce fair results 30 per contra the stand of the union as projected through smt madhavi divan learned asg and through the written submissions submitted can be summed up as follows the impugned amendments are perfectly valid the amendments are part of an economic measure there was a report of an expert committee the expert committee recommended imposing a threshold amendment in respect of certain classes of financial creditors it is modelled on the 11 2019 12 scale 572 32 companies act there are other statutory examples of such threshold requirements the impugned provisions conform to the principle of reasonable classification intelligible differentia distinguishes the allottees and debenture holders and security holders covered by the provisos from the other financial creditors the amendments were necessitated from experience there is a rational nexus between the differentia and the objects the amendment as far as the impugned provisos are concerned are essentially an extension of sections 21 6a and section 25a of the code under which the debenture holders and security holders on the one hand and allottees on the other are treated differently the provisions are not manifestly arbitrary they are indeed workable having regard to the explanation in section 7 1 the default qua any financial creditor even if he is not an applicant can be made use of by other allottees or debenture holders and security holders 33 31 it is pointed out further that the constitutional validity of sections 21 6a and 25a of the code was upheld by this court in pioneer supra in this regard attention is also drawn to the observations of this court in paragraph 43 of pioneer supra on the strength of the said observations it is contended that this court has recognized that allottees home buyers are not a homogenous group this court also recognized it is pointed out that the deposit holders and security holders form a sub class class of financial creditors who are treated a little differently on account of the sheer number of such creditors coupled with the heterogeneity within the group that may cause difficulties in the decision making process the provisions were introduced for ironing out the logistical procedural complications that may arise on account of the peculiar nature of these groups the provisions impugned in the present litigation merely supplement sections 21 6a and section 25a of the code the rationale in the said judgment should be applied in this case also it is further pointed out that the challenge in pioneer supra was mounted by the 34 developers and the home buyers accepted the provisions as being necessary to iron out the creases the asg drew support from judgments of this court which are as follows i ameerunnissa begum and others v mahboob begum and others12 ii state of jammu and kashmir v triloki nath khosa and others13 iii murthy match works and others v assistant collector of central excise and another14 iv ajoy kumar banerjee and others v union of india and others15 v ashutosh gupta v state of rajasthan and others16 32 it is contended that there is a rational nexus with the objects of the code insofar as the impugned provisos are concerned and the classification is permissible under article 14 of the constitution she 12 1953 scr 404 13 1974 1 scc 19 14 1974 4 scc 428 15 1984 3 scc 127 16 2002 4 scc 34 35 drew our attention to the statements of objects and reasons appended to the amendment bill to the code 2019 which introduced sub section 3a in section 25a it reads as follows 2 the preamble to the code lays down the objects of the code to include the insolvency resolution in a time bound manner for maximisation of value of assets in order to balance the interests of all the stakeholders concerns have been raised that in some cases extensive litigation is causing undue delays which may hamper the value maximisation there is a need to ensure that all creditors are treated fairly without unduly burdening the adjudicating authority whose role is to ensure that the resolution plan complies with the provisions of the code various stakeholders have suggested that if the creditors were treated on an equal footing when they have different preinsolvency entitlements it would adversely impact the cost and availability of credit further views have also been obtained so as to bring clarity on the voting pattern of financial creditors represented by the authorised representative d to insert sub section 3a in section 25a of the code to provide that an authorised representative under sub section 6a of section 21 will cast the vote for all financial creditors he represents in accordance with the decision taken by a vote of more than fifty per 36 cent of the voting share of the financial creditors he represents who have cast their vote in order to facilitate decision making in the committee of creditors especially when financial creditors are large and heterogeneous group 33 thus the statement of objects and reasons recognizes the heterogeneity within the class and the need to streamline smoothen and facilitate the process so as to avoid unnecessary delay there is also a concern about extensive litigation causing delays and hampering the maximization of value it is pointed out multiple applications by members of this large class of financial creditors in such a class would also add to the burden of the adjudicating authority choke up its docket and delay the process this would be counterproductive to the object of the code which seeks to ensure time bound resolution process for the maximization of total value of assets reference is made to the report of the insolvency law committee dated february 2020 which recommended the insertion of a minimum number of financial creditors in a class it reads as follows 37 ii application for initiation of cirp by class of creditors as cirp can be initiated by a single financial creditor such as a homebuyer or a deposit holder that belongs to a certain class of creditors following a minor dispute it might exert undue pressure on the corporate debtor and might jeopardize the interests of the other creditors in the class who are not in favor of such initiation it is being recommended that there should be a requirement for a minimum threshold number of certain financial creditors in a class for initiation of the cirp so an amendment to section 7 1 to provide that for a class of creditors falling within clause a or b of section 21 6a the cirp may only be initiated by at least a hundred such creditors or 10 percent of the total number of such creditors in a class 4 application for initiation of cirp by classes of creditors 4 1 section 7 of the code allows a financial creditor to initiate a cirp against a corporate debtor upon the occurrence of default either by itself or jointly with other financial creditors 4 2 it was brought to the committee that for classes of financial creditors referred to in sub clauses a and b of section 21 6a of the code such as deposit holders bondholders and homebuyers there was a concern that the cirp can be initiated by only one or few such financial creditors following minor disputes this may exert undue pressure on the corporate debtor and has the potential to jeopardise the interests of the other creditors in the class who are 38 not in favour of the initiation of cirp this may also impose additional burden upon the adjudicating authority to hear objections to heavily disputed applications the committee noted that this may be antithetical to the value of a time bound resolution process as the already over burdened adjudicating authorities are unable to list and admit all such cases filed before them 4 3 the committee discussed that classes of creditors such as homebuyers and deposit holders have every right as financial creditors to initiate cirp against a corporate debtor that has defaulted in the repayment of its dues however it was acknowledged that initiation of cirp by classes of similarly situated creditors should be done in a manner that represents their collective interests it was felt that a cirp should be initiated only where there is enough number of such creditors in a class forming a critical mass that indicates that there is in fact largescale agreement that the issues against a corporate entity need to be resolved by way of a cirp under the code this may well be a more streamlined way of allowing a well defined class of creditors to agree upon initiating what is a collective process of resolution under the code 4 4 in this regard and specific to the interests of homebuyers the committee also noted that in cases where a homebuyer cannot file an application for initiation of cirp for having failed to reach the aforesaid critical mass she would still have access to alternative fora under the rera and under consumer protection laws for instance as recognised by the supreme 39 court in the case of pioneer urban land and infrastructure limited and ors v union of india the remedies under the code and under the rera operate in completely different spheres the code deals with proceedings in rem under which homebuyers may want the corporate debtor s management to be removed and replaced so that the corporate debtor can be rehabilitated on the other hand the rera protects the interests of the individual investor in real estate projects by ensuring that homebuyers are not left in the lurch and get either compensation or delivery of their homes thus if there is a failure to reach a critical mass for initiation of cirp it may indicate that in such cases another remedy may be more suitable 4 5 accordingly it was agreed that there should be a requirement to have the support of a threshold number of financial creditors in a class for initiation of cirp 4 6 in this regard the committee considered if a cue may be taken from the requirements for filing of class actions suits as provided under the companies act 2013 class action suits may inter alia be filed by a hundred members or depositors or by at least 5 per cent of the total number of members or depositors of the company 14 similar to this requirement and keeping with the extant situation of classes of creditors under the code it was suggested that section 7 of the code could be amended in respect of such classes of creditors to allow initiation by a collective number of at least a hundred such creditors or at least ten percent of the total number of such 40 creditors forming part of the same class thus the committee agreed that section 7 1 of the code may be amended to provide that for classes of creditors falling within clauses a and b of section 21 6a the cirp may only be initiated by at least a hundred such creditors or ten percent of the total number of such creditors in a class 4 7 the committee also noted that the collective number of homebuyers that form the threshold amount for initiation of a cirp should belong to the same real estate project this would allow homebuyers that have commonality of interests i e allottees under the same real estate project to come together to take action for initiating cirp against a real estate developer thus in such cases the cirp may be initiated by at least a hundred such allottees or ten percent of the total number of such allottees belonging to the same real estate project 4 8 however to ensure that there is no prejudice to the interests of any such creditor in a class whose application has already been filed but not admitted by the adjudicating authority the committee agreed that a certain grace period may be provided within which such creditor in a class may modify and file its application in accordance with the above stated threshold requirements however if the creditor is unable to fulfil the threshold requirements to file such modified application within the grace period provided the application filed by such creditor would be deemed withdrawn emphasis supplied 41 34 in the statement of objects and reasons to the second amendment bill 2019 promulgated as an ordinance and thereafter as the impugned act it was inter alia stated that it was necessitated to prevent potential abuse of the code by certain classes of financial creditors inter alia this was necessary to prevent the derailing of the time bound cirp which was designed to secure the maximization of value of the assets the provision only supplements the protection under sections 65 and 75 of the code the intelligible differentia is projected as follows i numerosity ii heterogeneity iii lack of special expertise and individuality in decision making it is sought to be contrasted with institutional decision making which is associated with banks and financial institutions iv typicality in determination of default in other words in the case of banks and financial institutions records of public utilities would show a default in the case of allottees records 42 must be accessed through data publicly available under rera 35 the object and rationale of the impugned provisions are stated to be as follows i preventing multiple individual applications which has the effect of not only crowding the docket of the adjudicating authority and further holding up a process in which time is of the essence ii safeguarding the interest of hundreds or even thousands of allottees who may oppose the application of a single home buyer iii balancing the interest of members of the same sub class as also other financial creditors and other operational creditors the availability of remedies to the members of the sub class under rera in the case of allottees iv lastly the process becomes smoother and cost effective unnecessary financial bleeding of the corporate debtor who is already in difficulty is avoided 43 36 time is of the essence of the code proceedings are in the nature of proceedings in rem it impacts the rights of creditors including similarly placed creditors it is therefore reasonable and logical to place the threshold the minimum threshold is a minimum requirement the threshold is kept low and reasonable this court has upheld subclassification provided there is a rational basis she drew support from the following decisions i indra sawhney and others v union of india and others17 ii lord krishna sugar mills limited and another v union of india and another18 iii state of kerala and another v n m thomas and others19 iv state of west bengal and another v rash behari sarkar and another20 v state of kerala v aravind ramakant modawdakar and others21 17 1992 supp 3 scc 217 18 1960 1 scr 39 19 1976 2 scc 310 20 1993 1 scc 479 21 1999 7 scc 400 44 37 she sought to distinguish the judgment of this court in sansar chand atri v state of punjab and another22 which was relied on by the petitioners on the basis that this court in the said case only frowned upon creating a class within a class without rational basis in this case there was a rational basis for creating a sub class differential treatment is also contemplated under uncitral legislative guide and the guidelines 38 there is no basis in the contention that the amendments go against the law laid down in pioneer supra the question involved in the said case was not whether there can be a different treatme truncated 740 2021_w p c no 000054 2021 j 1 the national eligibility neet 2020 09 13 india v m india v federation non reportable in the supreme court of india civil original jurisdiction writ petition c no 54 of 2021 harshit agarwal ors petitioners s versus union of india ors respondent s with writ petition c no 95 of 2021 j u d g m e n t l nageswara rao j 1 the petitioners in writ petition no 54 of 2021 are students who appeared in the national eligibility cum entrance test neet examination 2020 for admission to the first year of bachelor of dental surgery bds conducted on 13 09 2020 they did not obtain the minimum marks prescribed by sub regulation ii of regulation ii of the dental council of india revised bds course regulations 2007 hereinafter the regulations therefore they were not eligible for admission to bds course the second 1 pa ge respondent dental council of india recommended the lowering of qualifying cut off percentile for admission to bds course for the academic year 2020 2021 2 the petitioners submitted a representation to respondent no 1 seeking to lower the qualifying cut off percentile on the recommendation of the executive committee of respondent no 2 the recommendation of the executive committee was not accepted by the first respondent having no other alternative the petitioners have filed these writ petitions under article 32 of the constitution of india 3 the petitioners in writ petition no 95 of 2021 are dental colleges from the state of andhra pradesh seeking a similar direction to lower the minimum marks for neet examination 2020 for admission to bds course by 20 percentile in each category based on the recommendation of respondent no 2 4 we have heard mr maninder singh learned senior counsel for the petitioners in writ petition no 95 of 2021 and mr krishna dev jagarlamudi learned counsel appearing for the petitioners in writ petition no 54 of 2021 mr maninder singh learned senior counsel submitted that the proviso to regulation ii 5 ii of the regulations empowers the central 2 pa ge government to lower the minimum marks required for admission to bds course in consultation with the dental council of india in spite of the recommendation made by the dental council of india for lowering the qualifying cut off percentile the first respondent has arbitrarily and unreasonably not acted upon the recommendation he stated that the first respondent accepted the proposal of the second respondent and lowered the cut off percentile for the year 2019 2020 he also relied upon the proceedings relating to the lowering of the minimum marks for the super speciality courses for the year 2019 2020 and for admission in ayurveda yoga and naturopathy unani siddha and homeopathy ayush ug courses for the year 2020 2021 he contended that percentile is different from percentage and by lowering the percentile there would be no compromise of standards he argued that 7 000 seats in the first year bds course are vacant and the available infrastructure would be wasted mr krishna dev learned counsel argued that there is no basis for the assumption that lowering of the percentile would affect standards of education there is no basis for the allegation that the private colleges have been charging exorbitant fees for which 3 pa ge reason seats in the bds first year are not being filled up according to him 5 ms aishwarya bhati learned additional solicitor general submitted that the first respondent has taken an informed decision on 30 12 2020 not to lower the minimum marks for admission to dental surgery course for the year 2020 2021 as sufficient number of candidates are available she submitted that 7 71 lakhs candidates were found to be eligible for filling up 82 000 mbbs and 28 000 bds course seats for each vacant seat seven candidates are available she further highlighted the point that there are 2 77 lakh dentists registered with the dental council of india taking into consideration the availability of 80 of dentists there is one dentist for every 6080 persons which is better than the who norms of 1 7500 it was further contended by her that the seats in bds course falling vacant is due to the candidates giving preference to other streams or their disability to pay exorbitant fee charged by the private colleges responding to the submissions made by the learned additional solicitor general mr singh learned senior counsel for the petitioners brought to the notice of this court that admissions to ayush courses are also made from students who qualify in the neet examination 2021 the 4 pa ge addition of 52780 seats in ayush would reduce the ratio of eligible candidates to the seats available in bds to 1 4 5 6 sub regulation ii of regulation ii of the regulations is as follows in order to be eligible for admission to bds course for a particular academic year it shall be necessary for a candidate to obtain minimum of marks of 50th percentile in national eligibility cum entrance test to bds course held for the said academic year however in respect of candidates belonging to scheduled castes scheduled tribes other backward classes the minimum marks shall be at 40th percentile in respect of candidates with locomotory disability of lower amendments the minimum marks shall be at 45th percentile the percentile shall be determined on the basis of highest marks secured in the all india common merit list in national eligibility cum entrance test for admission to bds course provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in national eligibility cum entrance test held for any academic year for admission to bds course the central government in consultation with dental council of india may at its discretion lower the minimum marks required for admission to bds course for candidates belonging to respective categories and marks so lowered by the central government shall be applicable for the said academic year only 7 it is clear from the proviso that the central government has the discretion to lower the minimum marks required for admission to bds course in consultation with the dental 5 pa ge council of india when sufficient number of candidates in the respective categories fail to secure minimum marks in the neet entrance test 8 there is no dispute that on 06 09 2019 the first respondent lowered the qualifying cut off percentile for neet ug 2019 for admission to bds course by 10 00 percentile for each category i e general sc st obc and persons with locomotor disability of lower limbs the dental council of india by a letter dated 28 12 2020 proposed that the percentile for admission to bds course in dental colleges should be lowered by 20 percentile for each category it was stated in the said letter that only 7 71 500 students qualified for admission to mbbs bds ug ayush and other ug medical courses for the year 2020 2021 it was made clear by the second respondent that the students qualified are not commensurate with the sanctioned admission capacity in different courses like mbbs bds ug ayush and other ug medical courses the second respondent informed the first respondent that there is shortage of the students for admission to bds course and underlined the fact that vacant seats in professional courses would amount to national waste however the first respondent decided not to lower the minimum marks required for admission to bds course in 6 pa ge this background the correctness of the decision of the first respondent not to reduce the minimum marks for first year bds course has to be examined 9 judicial review of administrative action is permissible on grounds of illegality irrationality and procedural impropriety an administrative decision is flawed if it is illegal a decision is illegal if it pursues an objective other than that for which the power to make the decision was conferred1 there is no unfettered discretion in public law2 discretion conferred on an authority has to be necessarily exercised only for the purpose provided in a statute the discretion exercised by the decision maker is subject to judicial scrutiny if a purpose other than a specified purpose is pursued if the authority pursues unauthorized purposes his decision is rendered illegal if irrelevant considerations are taken into account for reaching the decision or relevant considerations have been ignored the decision stands vitiated as the decision maker has misdirected himself in law it is useful to refer to r vs st pancras vestry3 in which it was held if people who have to exercise a public duty by exercising their discretion take into account maters which the courts consider not to be proper for the exercise of their discretion then in the eye of law they have not exercised their discretion 1 de smith s judicial review sixth edition pg 225 2 food corporation of india v m s kamdhenu cattle feed industries 1993 1 scc 71 3 1890 24 qbd 37 at p 375 7 pa ge 10 the question that arises for our consideration is whether the exercise of the discretion by the first respondent is for the purpose specified in the regulations and whether irrelevant considerations have been taken into account making the decision irrational the proviso to sub regulation ii of regulation ii is clear in its terms empowering the central government to exercise its discretion to lower minimum marks only when sufficient number of candidates fail to secure minimum marks the central government cannot pursue any purpose other than the one specified in the proviso to regulation ii 5 ii there are three reasons given for the decision not to lower minimum marks the first is that the ratio of available seats vis Ć vis eligible candidates is 1 7 and therefore there is no dearth of eligible candidates the other factor which propelled the central government to decide that there is no need to reduce the minimum mark is that there are sufficient number of dentists in india lack of keenness of students to join bds especially in private colleges which charge exorbitant fee as they are interested in mbbs course is yet another ground which impelled the decision of the first respondent 8 pa ge 11 the stand of the central government is that there are seven candidates available for each seat and therefore there is no need to lower the minimum marks this calculation of the first respondent is without taking into account the fact that neet ug 2020 is conducted for admission into different courses like mbbs bds ug ayush and other medical courses admissions for ug ayush and other ug medical courses are included in the neet for the first time from this year that apart it is clear from the letter of the dental council of india that neet has been made mandatory for admission to aiims and aiims like institutions and zipmer hitherto aiims and aiims like institutions and other institutions like zipmer were conducting their own separate entrance test the total number of seats available for the academic year 2020 2021 for mbbs are 91 367 bds are 26 949 and ayush are 52 720 making it a total of 1 71 036 seats whereas the neet qualified candidates are 7 71 500 the ratio of seats available vis Ć vis eligible students is 1 4 5 and not 7 the basis for the decision to not reduce minimum marks that there are sufficient eligible candidates is without considering the above vital facts the decision which materially suffers from the blemish of overlooking or ignoring wilfully or otherwise vital facts 9 pa ge bearing on the decision is bad in law4 the decision of the first respondent was propelled by extraneous considerations like sufficient number of dentists being available in the country and the reasons for which students were not inclined to get admitted to bds course which remits in the decision being unreasonable consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters there is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote5 12 the first respondent reduced the minimum marks for admission into first year bds course for the year 2019 2020 in consultation with the second respondent in spite of the recommendation made by the second respondent to reduce the minimum marks for the year 2020 2021 the first respondent deemed it fit not to lower the minimum marks for the current year while arriving at a decision on 30 12 2020 not to lower the minimum marks it does not appear that the first respondent has consulted the second respondent in accordance with the proviso to sub regulation ii of the regulation ii there is no dispute that the 4 baldev raj vs union of india 1980 4 scc 321 5 commissioner of income tax vs mahindra mahindra 1983 4 scc 392 10 pa ge minimum marks have been reduced by the first respondent for the super speciality courses for the last year and ayush courses for the current year if reducing minimum marks amounts to lowering the standards the first respondent would not do so for super speciality courses we are in agreement with mr maninder singh learned senior counsel for the petitioners that lowering the minimum marks and reducing percentile for admission to the first year bds course would not amount to lowering the standards of education 13 there are about 7 000 seats available for admission to the first year bds course during the year 2020 2021 we are not impressed by the argument of the learned additional solicitor general that there are sufficient number of dentists in the country and therefore there is no harm in the seats being unfilled however we find force in the submission made by the learned additional solicitor general that the fee charged by the private dental colleges is a deterrent for the seats not being filled up only 265 out of 7 000 seats are vacant in government colleges all the other unfilled seats are in private dental colleges the managements of private dental colleges shall consider reducing the fee charged by them to encourage students to join the colleges reliance 11 pa ge was placed by the first respondent in an order passed by this court in union of india v federation of self financed ayurvedic colleges punjab 2020 scc 115 to submit that non availability of eligible candidates for admission to ayush ug courses cannot be a reason to lower the standards prescribed by the central council for admission the facts of this case are entirely different as the dental council of india itself recommended for lowering the minimum marks and the regulations provide for lowering the minimum marks that apart the first respondent has exercised its discretion and lowered the minimum marks for admission to first year bds course for the year 2019 2020 14 for the aforementioned reasons we set aside the decision of the first respondent dated 30 12 2020 to not reduce the minimum marks for admission to bds course as it suffers from the vices of illegality and irrationality we direct that the vacant seats in first year bds course for the year 2020 2021 shall be filled up from the candidates who have participated in the neet ug courses for the year 2020 2021 after lowering the percentile mark by 10 percentile the candidates belonging to the general category who have secured 40 percentile shall be eligible to be considered for admission in the first year bds course for the 12 pa ge year 2020 2021 likewise students belonging to the sc st obc categories shall be qualified if they have secured 30 percentile in so far as general candidates with bench mark disabilities specified under the rights of persons with disabilities act 2016 they would be eligible if they have secured 35 percentile the admissions shall be made strictly in accordance with merit and the admission process shall be completed by 18 02 2021 any other student who has qualified in neet ug 2020 even without lowering the minimum marks and is willing to participate in the admission process shall also be considered for admission to bds course 15 the writ petitions are allowed j l nageswara rao j krishna murari new delhi february 08 2021 13 pa ge non reportable in the supreme court of india civil original jurisdiction writ petition c no 54 of 2021 harshit agarwal ors petitioners s versus union of india ors respondent s with writ petition c no 95 of 2021 j u d g m e n t l nageswara rao j 1 the petitioners in writ petition no 54 of 2021 are students who appeared in the national eligibility cum entrance test neet examination 2020 for admission to the first year of bachelor of dental surgery bds conducted on 13 09 2020 they did not obtain the minimum marks prescribed by sub regulation ii of regulation ii of the dental council of india revised bds course regulations 2007 hereinafter the regulations therefore they were not eligible for admission to bds course the second 1 pa ge respondent dental council of india recommended the lowering of qualifying cut off percentile for admission to bds course for the academic year 2020 2021 2 the petitioners submitted a representation to respondent no 1 seeking to lower the qualifying cut off percentile on the recommendation of the executive committee of respondent no 2 the recommendation of the executive committee was not accepted by the first respondent having no other alternative the petitioners have filed these writ petitions under article 32 of the constitution of india 3 the petitioners in writ petition no 95 of 2021 are dental colleges from the state of andhra pradesh seeking a similar direction to lower the minimum marks for neet examination 2020 for admission to bds course by 20 percentile in each category based on the recommendation of respondent no 2 4 we have heard mr maninder singh learned senior counsel for the petitioners in writ petition no 95 of 2021 and mr krishna dev jagarlamudi learned counsel appearing for the petitioners in writ petition no 54 of 2021 mr maninder singh learned senior counsel submitted that the proviso to regulation ii 5 ii of the regulations empowers the central 2 pa ge government to lower the minimum marks required for admission to bds course in consultation with the dental council of india in spite of the recommendation made by the dental council of india for lowering the qualifying cut off percentile the first respondent has arbitrarily and unreasonably not acted upon the recommendation he stated that the first respondent accepted the proposal of the second respondent and lowered the cut off percentile for the year 2019 2020 he also relied upon the proceedings relating to the lowering of the minimum marks for the super speciality courses for the year 2019 2020 and for admission in ayurveda yoga and naturopathy unani siddha and homeopathy ayush ug courses for the year 2020 2021 he contended that percentile is different from percentage and by lowering the percentile there would be no compromise of standards he argued that 7 000 seats in the first year bds course are vacant and the available infrastructure would be wasted mr krishna dev learned counsel argued that there is no basis for the assumption that lowering of the percentile would affect standards of education there is no basis for the allegation that the private colleges have been charging exorbitant fees for which 3 pa ge reason seats in the bds first year are not being filled up according to him 5 ms aishwarya bhati learned additional solicitor general submitted that the first respondent has taken an informed decision on 30 12 2020 not to lower the minimum marks for admission to dental surgery course for the year 2020 2021 as sufficient number of candidates are available she submitted that 7 71 lakhs candidates were found to be eligible for filling up 82 000 mbbs and 28 000 bds course seats for each vacant seat seven candidates are available she further highlighted the point that there are 2 77 lakh dentists registered with the dental council of india taking into consideration the availability of 80 of dentists there is one dentist for every 6080 persons which is better than the who norms of 1 7500 it was further contended by her that the seats in bds course falling vacant is due to the candidates giving preference to other streams or their disability to pay exorbitant fee charged by the private colleges responding to the submissions made by the learned additional solicitor general mr singh learned senior counsel for the petitioners brought to the notice of this court that admissions to ayush courses are also made from students who qualify in the neet examination 2021 the 4 pa ge addition of 52780 seats in ayush would reduce the ratio of eligible candidates to the seats available in bds to 1 4 5 6 sub regulation ii of regulation ii of the regulations is as follows in order to be eligible for admission to bds course for a particular academic year it shall be necessary for a candidate to obtain minimum of marks of 50th percentile in national eligibility cum entrance test to bds course held for the said academic year however in respect of candidates belonging to scheduled castes scheduled tribes other backward classes the minimum marks shall be at 40th percentile in respect of candidates with locomotory disability of lower amendments the minimum marks shall be at 45th percentile the percentile shall be determined on the basis of highest marks secured in the all india common merit list in national eligibility cum entrance test for admission to bds course provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in national eligibility cum entrance test held for any academic year for admission to bds course the central government in consultation with dental council of india may at its discretion lower the minimum marks required for admission to bds course for candidates belonging to respective categories and marks so lowered by the central government shall be applicable for the said academic year only 7 it is clear from the proviso that the central government has the discretion to lower the minimum marks required for admission to bds course in consultation with the dental 5 pa ge council of india when sufficient number of candidates in the respective categories fail to secure minimum marks in the neet entrance test 8 there is no dispute that on 06 09 2019 the first respondent lowered the qualifying cut off percentile for neet ug 2019 for admission to bds course by 10 00 percentile for each category i e general sc st obc and persons with locomotor disability of lower limbs the dental council of india by a letter dated 28 12 2020 proposed that the percentile for admission to bds course in dental colleges should be lowered by 20 percentile for each category it was stated in the said letter that only 7 71 500 students qualified for admission to mbbs bds ug ayush and other ug medical courses for the year 2020 2021 it was made clear by the second respondent that the students qualified are not commensurate with the sanctioned admission capacity in different courses like mbbs bds ug ayush and other ug medical courses the second respondent informed the first respondent that there is shortage of the students for admission to bds course and underlined the fact that vacant seats in professional courses would amount to national waste however the first respondent decided not to lower the minimum marks required for admission to bds course in 6 pa ge this background the correctness of the decision of the first respondent not to reduce the minimum marks for first year bds course has to be examined 9 judicial review of administrative action is permissible on grounds of illegality irrationality and procedural impropriety an administrative decision is flawed if it is illegal a decision is illegal if it pursues an objective other than that for which the power to make the decision was conferred1 there is no unfettered discretion in public law2 discretion conferred on an authority has to be necessarily exercised only for the purpose provided in a statute the discretion exercised by the decision maker is subject to judicial scrutiny if a purpose other than a specified purpose is pursued if the authority pursues unauthorized purposes his decision is rendered illegal if irrelevant considerations are taken into account for reaching the decision or relevant considerations have been ignored the decision stands vitiated as the decision maker has misdirected himself in law it is useful to refer to r vs st pancras vestry3 in which it was held if people who have to exercise a public duty by exercising their discretion take into account maters which the courts consider not to be proper for the exercise of their discretion then in the eye of law they have not exercised their discretion 1 de smith s judicial review sixth edition pg 225 2 food corporation of india v m s kamdhenu cattle feed industries 1993 1 scc 71 3 1890 24 qbd 37 at p 375 7 pa ge 10 the question that arises for our consideration is whether the exercise of the discretion by the first respondent is for the purpose specified in the regulations and whether irrelevant considerations have been taken into account making the decision irrational the proviso to sub regulation ii of regulation ii is clear in its terms empowering the central government to exercise its discretion to lower minimum marks only when sufficient number of candidates fail to secure minimum marks the central government cannot pursue any purpose other than the one specified in the proviso to regulation ii 5 ii there are three reasons given for the decision not to lower minimum marks the first is that the ratio of available seats vis Ć vis eligible candidates is 1 7 and therefore there is no dearth of eligible candidates the other factor which propelled the central government to decide that there is no need to reduce the minimum mark is that there are sufficient number of dentists in india lack of keenness of students to join bds especially in private colleges which charge exorbitant fee as they are interested in mbbs course is yet another ground which impelled the decision of the first respondent 8 pa ge 11 the stand of the central government is that there are seven candidates available for each seat and therefore there is no need to lower the minimum marks this calculation of the first respondent is without taking into account the fact that neet ug 2020 is conducted for admission into different courses like mbbs bds ug ayush and other medical courses admissions for ug ayush and other ug medical courses are included in the neet for the first time from this year that apart it is clear from the letter of the dental council of india that neet has been made mandatory for admission to aiims and aiims like institutions and zipmer hitherto aiims and aiims like institutions and other institutions like zipmer were conducting their own separate entrance test the total number of seats available for the academic year 2020 2021 for mbbs are 91 367 bds are 26 949 and ayush are 52 720 making it a total of 1 71 036 seats whereas the neet qualified candidates are 7 71 500 the ratio of seats available vis Ć vis eligible students is 1 4 5 and not 7 the basis for the decision to not reduce minimum marks that there are sufficient eligible candidates is without considering the above vital facts the decision which materially suffers from the blemish of overlooking or ignoring wilfully or otherwise vital facts 9 pa ge bearing on the decision is bad in law4 the decision of the first respondent was propelled by extraneous considerations like sufficient number of dentists being available in the country and the reasons for which students were not inclined to get admitted to bds course which remits in the decision being unreasonable consideration of factors other than availability of eligible students would be the result of being influenced by irrelevant or extraneous matters there is an implicit obligation on the decision maker to apply his mind to pertinent and proximate matters only eschewing the irrelevant and the remote5 12 the first respondent reduced the minimum marks for admission into first year bds course for the year 2019 2020 in consultation with the second respondent in spite of the recommendation made by the second respondent to reduce the minimum marks for the year 2020 2021 the first respondent deemed it fit not to lower the minimum marks for the current year while arriving at a decision on 30 12 2020 not to lower the minimum marks it does not appear that the first respondent has consulted the second respondent in accordance with the proviso to sub regulation ii of the regulation ii there is no dispute that the 4 baldev raj vs union of india 1980 4 scc 321 5 commissioner of income tax vs mahindra mahindra 1983 4 scc 392 10 pa ge minimum marks have been reduced by the first respondent for the super speciality courses for the last year and ayush courses for the current year if reducing minimum marks amounts to lowering the standards the first respondent would not do so for super speciality courses we are in agreement with mr maninder singh learned senior counsel for the petitioners that lowering the minimum marks and reducing percentile for admission to the first year bds course would not amount to lowering the standards of education 13 there are about 7 000 seats available for admission to the first year bds course during the year 2020 2021 we are not impressed by the argument of the learned additional solicitor general that there are sufficient number of dentists in the country and therefore there is no harm in the seats being unfilled however we find force in the submission made by the learned additional solicitor general that the fee charged by the private dental colleges is a deterrent for the seats not being filled up only 265 out of 7 000 seats are vacant in government colleges all the other unfilled seats are in private dental colleges the managements of private dental colleges shall consider reducing the fee charged by them to encourage students to join the colleges reliance 11 pa ge was placed by the first respondent in an order passed by this court in union of india v federation of self financed ayurvedic colleges punjab 2020 scc 115 to submit that non availability of eligible candidates for admission to ayush ug courses cannot be a reason to lower the standards prescribed by the central council for admission the facts of this case are entirely different as the dental council of india itself recommended for lowering the minimum marks and the regulations provide for lowering the minimum marks that apart the first respondent has exercised its discretion and lowered the minimum marks for admission to first year bds course for the year 2019 2020 14 for the aforementioned reasons we set aside the decision of the first respondent dated 30 12 2020 to not reduce the minimum marks for admission to bds course as it suffers from the vices of illegality and irrationality we direct that the vacant seats in first year bds course for the year 2020 2021 shall be filled up from the candidates who have participated in the neet ug courses for the year 2020 2021 after lowering the percentile mark by 10 percentile the candidates belonging to the general category who have secured 40 percentile shall be eligible to be considered for admission in the first year bds course for the 12 pa ge year 2020 2021 likewise students belonging to the sc st obc categories shall be qualified if they have secured 30 percentile in so far as general candidates with bench mark disabilities specified under the rights of persons with disabilities act 2016 they would be eligible if they have secured 35 percentile the admissions shall be made strictly in accordance with merit and the admission process shall be completed by 18 02 2021 any other student who has qualified in neet ug 2020 even without lowering the minimum marks and is willing to participate in the admission process shall also be considered for admission to bds course 15 the writ petitions are allowed j l nageswara rao j krishna murari new delhi february 08 2021 13 pa ge 746 2021_w p c no 000078 2021 larsgess scheme the railway administration haryana high court 2016 04 27 1 reportable in the supreme court of india civil original jurisdiction writ petition civil no 78 of 2021 manjit and ors appellant s versus union of india and anr respondent s j u d g m e n t dr dhananjaya y chandrachud j 1 invoking the jurisdiction under article 32 of the constitution the petitioners seek the following reliefs a issue a writ in the nature of mandamus directing the respondent to appoint the petitioners in their respective cadres and b issue any other appropriate writ order or direction in the facts and circumstances of the case 2 the dispute in the present case relates to a scheme popularly termed as the larsgess scheme which had been adopted by the railway administration previously the punjab and haryana high court passed orders on 27 april 2016 and 14 july 2017 requiring the union of india to reconsider the scheme the orders of the high court were evidently based on the fact that the scheme provided for an entry into service for certain wards of serving employees without undergoing a competitive selection consistent with the requirement of articles 14 and 16 of the constitution on 8 january 2018 in slp c no 508 of 2018 2 arising from the judgment and order of the high court of punjab and haryana dated 14 july 2017 in rp no 330 of 2017 this court directed the union of india to take a conscious decision within a period of six weeks the order dated 8 january 2018 was in the following terms heard learned counsel for the parties delay condoned since the direction in the impugned order is only to re visit the scheme in question no interference is called for at this stage the petitioner s may take a conscious decision in the matter within a period of six weeks from today if any party is affected by the decision taken such party may take remedy against the same in accordance with law the special leave petition is accordingly disposed of pending application s including application for intervention shall also stand disposed of 3 on 5 march 2019 the union of india took a decision to terminate the scheme the decision of the union of india was noticed in an order dated 6 march 2019 in the following terms in compliance of the directions of the hon ble punjab haryana high court dated 27 04 2016 in cwp no 7714 of 2016 dated 14 07 2017 in ra cw 330 2017 and orders of hon ble supreme court dated 08 01 2018 in slp c no 508 2018 ministry of railways have revisited the larsgess scheme duly obtaining legal opinion and consulted ministry of law justice accordingly it has been decided to terminate the larsgess scheme w e f 27 10 2017 i e the date from which it was put on hold therefore no further appointments should be made under the scheme subject to position mentioned in para 2 below 2 as regards the cases where the wards had completed all formalities including medical examination under larsgess scheme prior to 27 10 2017 and were found fit but the employees are yet to retire the matter is pending consideration before the hon ble supreme 3 court and further instructions would be issued as per directions of the hon ble court 4 following the above decision on 6 march 2019 this court disposed of ia 18573 of 2019 in miscellaneous application no 346 of 2019 in miscellaneous application no 1202 of 2018 in slp c no 508 of 2018 by observing that since the scheme stands terminated and is no longer in existence nothing further need be done in the matter 5 in a subsequent order dated 26 march 2019 which was rendered in writ petition c no 219 of 2019 narinder siraswal v union of india a bench of two judges permitted the petitioners to approach the authorities with an appropriate representation with a direction to consider it 6 the reliefs which have been sought in the present case as already noted earlier are for a writ of mandamus to the union of india to appoint the petitioners in their respective cadres a conscious decision has been taken by the union of india to terminate the scheme this has been noticed in the order of this court dated 6 march 2019 which has been extracted above while taking this decision on 5 march 2019 the union of india had stated that where wards had completed all formalities prior to 27 october 2017 the date of termination of the scheme and were found fit since the matter was pending consideration before this court further instructions would be issued in accordance with the directions of this court noticing the above decision this court in its order dated 6 march 2019 specifically observed that since the scheme stands terminated and is no longer in existence nothing further need be done in the matter the scheme provided for an avenue of a back door entry into the service of the railways this would be fundamentally at odds with article 16 of the constitution the union government has with justification discontinued the scheme the petitioners can 4 claim neither a vested right nor a legitimate expectation under such a scheme all claims based on the scheme must now be closed 7 in view of the above factual background we are not inclined to entertain the petition under article 32 the grant of reliefs to the petitioners would only enable them to seek a back door entry contrary to the orders of this court the union of india has correctly terminated the scheme and that decision continues to stand 8 having regard to the above facts and circumstances the petition is dismissed a certified copy of this order shall be forwarded by the registrar judicial to the chairman of the railway board for intimation and compliance 9 pending application if any stands disposed of j dr dhananjaya y chandrachud j indira banerjee j sanjiv khanna new delhi january 29 2021 s 5 item no 21 court 6 video conferencing section x s u p r e m e c o u r t o f i n d i a record of proceedings writ petition s civil no s 78 2021 manjit ors petitioner s versus union of india anr respondent s with ia no 8032 2021 exemption from filing affidavit date 29 01 2021 this petition was called on for hearing today coram hon ble dr justice d y chandrachud hon ble ms justice indira banerjee hon ble mr justice sanjiv khanna for petitioner s mr raj kishor choudhary aor mr shakeel ahmed adv mr anupam bhati adv ms malvika raghavan adv mr nakul chaudhary adv mr h s mann adv for respondent s upon hearing the counsel the court made the following o r d e r 1 the writ petition is dismissed in terms of the signed reportable judgment a certified copy of this order shall be forwarded by the registrar judicial to the chairman of the railway board for intimation and compliance 2 pending application if any stands disposed of sanjay kumar i saroj kumari gaur ar cum ps court master signed reportable judgment is placed on the file 1 reportable in the supreme court of india civil original jurisdiction writ petition civil no 78 of 2021 manjit and ors appellant s versus union of india and anr respondent s j u d g m e n t dr dhananjaya y chandrachud j 1 invoking the jurisdiction under article 32 of the constitution the petitioners seek the following reliefs a issue a writ in the nature of mandamus directing the respondent to appoint the petitioners in their respective cadres and b issue any other appropriate writ order or direction in the facts and circumstances of the case 2 the dispute in the present case relates to a scheme popularly termed as the larsgess scheme which had been adopted by the railway administration previously the punjab and haryana high court passed orders on 27 april 2016 and 14 july 2017 requiring the union of india to reconsider the scheme the orders of the high court were evidently based on the fact that the scheme provided for an entry into service for certain wards of serving employees without undergoing a competitive selection consistent with the requirement of articles 14 and 16 of the constitution on 8 january 2018 in slp c no 508 of 2018 2 arising from the judgment and order of the high court of punjab and haryana dated 14 july 2017 in rp no 330 of 2017 this court directed the union of india to take a conscious decision within a period of six weeks the order dated 8 january 2018 was in the following terms heard learned counsel for the parties delay condoned since the direction in the impugned order is only to re visit the scheme in question no interference is called for at this stage the petitioner s may take a conscious decision in the matter within a period of six weeks from today if any party is affected by the decision taken such party may take remedy against the same in accordance with law the special leave petition is accordingly disposed of pending application s including application for intervention shall also stand disposed of 3 on 5 march 2019 the union of india took a decision to terminate the scheme the decision of the union of india was noticed in an order dated 6 march 2019 in the following terms in compliance of the directions of the hon ble punjab haryana high court dated 27 04 2016 in cwp no 7714 of 2016 dated 14 07 2017 in ra cw 330 2017 and orders of hon ble supreme court dated 08 01 2018 in slp c no 508 2018 ministry of railways have revisited the larsgess scheme duly obtaining legal opinion and consulted ministry of law justice accordingly it has been decided to terminate the larsgess scheme w e f 27 10 2017 i e the date from which it was put on hold therefore no further appointments should be made under the scheme subject to position mentioned in para 2 below 2 as regards the cases where the wards had completed all formalities including medical examination under larsgess scheme prior to 27 10 2017 and were found fit but the employees are yet to retire the matter is pending consideration before the hon ble supreme 3 court and further instructions would be issued as per directions of the hon ble court 4 following the above decision on 6 march 2019 this court disposed of ia 18573 of 2019 in miscellaneous application no 346 of 2019 in miscellaneous application no 1202 of 2018 in slp c no 508 of 2018 by observing that since the scheme stands terminated and is no longer in existence nothing further need be done in the matter 5 in a subsequent order dated 26 march 2019 which was rendered in writ petition c no 219 of 2019 narinder siraswal v union of india a bench of two judges permitted the petitioners to approach the authorities with an appropriate representation with a direction to consider it 6 the reliefs which have been sought in the present case as already noted earlier are for a writ of mandamus to the union of india to appoint the petitioners in their respective cadres a conscious decision has been taken by the union of india to terminate the scheme this has been noticed in the order of this court dated 6 march 2019 which has been extracted above while taking this decision on 5 march 2019 the union of india had stated that where wards had completed all formalities prior to 27 october 2017 the date of termination of the scheme and were found fit since the matter was pending consideration before this court further instructions would be issued in accordance with the directions of this court noticing the above decision this court in its order dated 6 march 2019 specifically observed that since the scheme stands terminated and is no longer in existence nothing further need be done in the matter the scheme provided for an avenue of a back door entry into the service of the railways this would be fundamentally at odds with article 16 of the constitution the union government has with justification discontinued the scheme the petitioners can 4 claim neither a vested right nor a legitimate expectation under such a scheme all claims based on the scheme must now be closed 7 in view of the above factual background we are not inclined to entertain the petition under article 32 the grant of reliefs to the petitioners would only enable them to seek a back door entry contrary to the orders of this court the union of india has correctly terminated the scheme and that decision continues to stand 8 having regard to the above facts and circumstances the petition is dismissed a certified copy of this order shall be forwarded by the registrar judicial to the chairman of the railway board for intimation and compliance 9 pending application if any stands disposed of j dr dhananjaya y chandrachud j indira banerjee j sanjiv khanna new delhi january 29 2021 s 5 item no 21 court 6 video conferencing section x s u p r e m e c o u r t o f i n d i a record of proceedings writ petition s civil no s 78 2021 manjit ors petitioner s versus union of india anr respondent s with ia no 8032 2021 exemption from filing affidavit date 29 01 2021 this petition was called on for hearing today coram hon ble dr justice d y chandrachud hon ble ms justice indira banerjee hon ble mr justice sanjiv khanna for petitioner s mr raj kishor choudhary aor mr shakeel ahmed adv mr anupam bhati adv ms malvika raghavan adv mr nakul chaudhary adv mr h s mann adv for respondent s upon hearing the counsel the court made the following o r d e r 1 the writ petition is dismissed in terms of the signed reportable judgment a certified copy of this order shall be forwarded by the registrar judicial to the chairman of the railway board for intimation and compliance 2 pending application if any stands disposed of sanjay kumar i saroj kumari gaur ar cum ps court master signed reportable judgment is placed on the file 809 2021_slp c no 001240 2021 hilli multipurpose cold storage reported in 2020 2017 10 02 limited v hilli ltd v m limited v hilli limited v hilli merchant v shrinath limited v hilli reportable in the supreme court of india extra ordinary appellate jurisdiction petition for special leave to appeal civil no 1240 of 2021 m s daddy s builders pvt ltd another petitioners versus manisha bhargava and another respondents o r d e r m r shah j 1 feeling aggrieved and dissatisfied with the impugned order dated 04 09 2020 passed by the national consumer disputes redressal commission new delhi hereinafter referred to as the national commission in first appeal no 1999 2018 by which the national commission has dismissed the said appeal confirming the order passed by the karnataka state consumer disputes redressal commission hereinafter referred to as the state commission dated 26 09 2018 rejecting the application filed by the petitioners herein seeking condonation of delay in filing the written version written 1 statement to the consumer complaint original respondent nos 1 2 petitioners herein have preferred the present special leave petition 2 by order dated 26 09 2018 the state commission rejected the application filed by the petitioners herein seeking condonation of delay in filing the written statement written version to the consumer complaint it is not in dispute that the written version written statement was filed beyond the prescribed period of limitation provided under the consumer protection act 1986 hereinafter referred to as the act i e beyond the period of 45 days it is not in dispute that as per the provisions of the act the written version written statement is required to be filed within 30 days and the same can be extended by a further period of 15 days the order passed by the state commission came to be confirmed by the national commission hence the present special leave petition 3 shri ashish choudhary learned advocate appearing on behalf of the petitioners has vehemently submitted that it is true that as per the decision of the constitution bench of this court in the case of new india assurance company limited v hilli multipurpose cold storage private limited reported in 2020 5 scc 757 the district forum has no power to extend the time to file the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under section 13 of the act it is submitted that however as observed in paragraph 63 the said judgment shall be applicable prospectively 2 only therefore it is the case on behalf of the petitioners that the aforesaid decision shall not be applicable retrospectively and more particularly to the complaints filed before the said decision it is submitted that in the present case the application for condition of delay came up for consideration before the state commission on 26 09 2018 and on that date there was a judgment of this court in the case of reliance general insurance co ltd v m s mampee timbers hardwares pvt ltd diary no 2365 of 2017 decided on 10 02 2017 directing the consumer fora to accept the written statement beyond the stipulated time of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter keeping in view the fact that the judgment of this court in the case of new india assurance company limited v hilli multipurpose cold storage private limited reported in 2015 16 scc 20 has been referred to a larger bench therefore it is the case on behalf of the petitioners that the state commission ought to have condoned the delay in filing the written statement written version to the consumer complaint 4 having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the state commission passed the order then on that date whether the state commission has the power to condone the delay beyond 45 days for filing the written statement under section 13 of the act is concerned as such the said issue whether the state commission has the power to condone the delay beyond 45 days is now not res 3 integra in view of the constitution bench decision of this court in the case of new india assurance company limited v hilli multipurpose cold storage pvt ltd reported in 2020 5 scc 757 however it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and or the said decision shall not be applicable to the application for condonation of delay filed before the said decision however the aforesaid cannot be accepted it is required to be noted that as per the decision of this court in the case of j j merchant v shrinath chaturvedi reported in 2002 6 scc 635 which was a three judge bench decision consumer fora has no power to extend the time for filing a reply written statement beyond the period prescribed under the act however thereafter despite the above three judge bench decision a contrary view was taken by a two judge bench and therefore the matter was referred to the five judge bench and the constitution bench has reiterated the view taken in the case of j j merchant supra and has again reiterated that the consumer fora has no power and or jurisdiction to accept the written statement beyond the statutory period prescribed under the act i e 45 days in all however it was found that in view of the order passed by this court in reliance general insurance co ltd supra dated 10 02 2017 pending the decision of the larger 4 bench in some of the cases the state commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected this court observed in paragraph 63 that the decision of the constitution bench shall be applicable prospectively we say so because one of us was a party to the said decision of the constitution bench 5 now so far as the reliance placed upon the order passed by this court dated 10 02 2017 in the case of reliance general insurance co ltd supra is concerned the same has been dealt with in detail by the national commission by the impugned order while deciding the first appeal as rightly observed by the national commission there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days the delay must be condoned and the written statement must be taken on record in order dated 10 02 2017 it is specifically mentioned that it will be open to the concerned fora to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter therefore ultimately it was left to the concerned fora to accept the written statement beyond the stipulated period of 45 days in an appropriate case as observed by the national commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation therefore the national commission has 5 considered the aspect of condonation of delay on merits also in any case in view of the earlier decision of this court in the case of j j merchant supra and the subsequent authoritative decision of the constitution bench of this court in the case of new india assurance company limited v hilli multipurpose cold storage pvt ltd 2020 5 scc 757 consumer fora has no jurisdiction and or power to accept the written statement beyond the period of 45 days we see no reason to interfere with the impugned order passed by the learned national commission 6 in view of the above and for the reasons stated hereinabove the present special leave petition deserves to be dismissed and is accordingly dismissed j dr dhananjaya y chandrachud new delhi j february 11 2021 m r shah 6 reportable in the supreme court of india extra ordinary appellate jurisdiction petition for special leave to appeal civil no 1240 of 2021 m s daddy s builders pvt ltd another petitioners versus manisha bhargava and another respondents o r d e r m r shah j 1 feeling aggrieved and dissatisfied with the impugned order dated 04 09 2020 passed by the national consumer disputes redressal commission new delhi hereinafter referred to as the national commission in first appeal no 1999 2018 by which the national commission has dismissed the said appeal confirming the order passed by the karnataka state consumer disputes redressal commission hereinafter referred to as the state commission dated 26 09 2018 rejecting the application filed by the petitioners herein seeking condonation of delay in filing the written version written 1 statement to the consumer complaint original respondent nos 1 2 petitioners herein have preferred the present special leave petition 2 by order dated 26 09 2018 the state commission rejected the application filed by the petitioners herein seeking condonation of delay in filing the written statement written version to the consumer complaint it is not in dispute that the written version written statement was filed beyond the prescribed period of limitation provided under the consumer protection act 1986 hereinafter referred to as the act i e beyond the period of 45 days it is not in dispute that as per the provisions of the act the written version written statement is required to be filed within 30 days and the same can be extended by a further period of 15 days the order passed by the state commission came to be confirmed by the national commission hence the present special leave petition 3 shri ashish choudhary learned advocate appearing on behalf of the petitioners has vehemently submitted that it is true that as per the decision of the constitution bench of this court in the case of new india assurance company limited v hilli multipurpose cold storage private limited reported in 2020 5 scc 757 the district forum has no power to extend the time to file the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under section 13 of the act it is submitted that however as observed in paragraph 63 the said judgment shall be applicable prospectively 2 only therefore it is the case on behalf of the petitioners that the aforesaid decision shall not be applicable retrospectively and more particularly to the complaints filed before the said decision it is submitted that in the present case the application for condition of delay came up for consideration before the state commission on 26 09 2018 and on that date there was a judgment of this court in the case of reliance general insurance co ltd v m s mampee timbers hardwares pvt ltd diary no 2365 of 2017 decided on 10 02 2017 directing the consumer fora to accept the written statement beyond the stipulated time of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter keeping in view the fact that the judgment of this court in the case of new india assurance company limited v hilli multipurpose cold storage private limited reported in 2015 16 scc 20 has been referred to a larger bench therefore it is the case on behalf of the petitioners that the state commission ought to have condoned the delay in filing the written statement written version to the consumer complaint 4 having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the state commission passed the order then on that date whether the state commission has the power to condone the delay beyond 45 days for filing the written statement under section 13 of the act is concerned as such the said issue whether the state commission has the power to condone the delay beyond 45 days is now not res 3 integra in view of the constitution bench decision of this court in the case of new india assurance company limited v hilli multipurpose cold storage pvt ltd reported in 2020 5 scc 757 however it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and or the said decision shall not be applicable to the application for condonation of delay filed before the said decision however the aforesaid cannot be accepted it is required to be noted that as per the decision of this court in the case of j j merchant v shrinath chaturvedi reported in 2002 6 scc 635 which was a three judge bench decision consumer fora has no power to extend the time for filing a reply written statement beyond the period prescribed under the act however thereafter despite the above three judge bench decision a contrary view was taken by a two judge bench and therefore the matter was referred to the five judge bench and the constitution bench has reiterated the view taken in the case of j j merchant supra and has again reiterated that the consumer fora has no power and or jurisdiction to accept the written statement beyond the statutory period prescribed under the act i e 45 days in all however it was found that in view of the order passed by this court in reliance general insurance co ltd supra dated 10 02 2017 pending the decision of the larger 4 bench in some of the cases the state commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected this court observed in paragraph 63 that the decision of the constitution bench shall be applicable prospectively we say so because one of us was a party to the said decision of the constitution bench 5 now so far as the reliance placed upon the order passed by this court dated 10 02 2017 in the case of reliance general insurance co ltd supra is concerned the same has been dealt with in detail by the national commission by the impugned order while deciding the first appeal as rightly observed by the national commission there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days the delay must be condoned and the written statement must be taken on record in order dated 10 02 2017 it is specifically mentioned that it will be open to the concerned fora to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case on suitable terms including the payment of costs and to proceed with the matter therefore ultimately it was left to the concerned fora to accept the written statement beyond the stipulated period of 45 days in an appropriate case as observed by the national commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation therefore the national commission has 5 considered the aspect of condonation of delay on merits also in any case in view of the earlier decision of this court in the case of j j merchant supra and the subsequent authoritative decision of the constitution bench of this court in the case of new india assurance company limited v hilli multipurpose cold storage pvt ltd 2020 5 scc 757 consumer fora has no jurisdiction and or power to accept the written statement beyond the period of 45 days we see no reason to interfere with the impugned order passed by the learned national commission 6 in view of the above and for the reasons stated hereinabove the present special leave petition deserves to be dismissed and is accordingly dismissed j dr dhananjaya y chandrachud new delhi j february 11 2021 m r shah 6 892 2021_t p crl no 000017 2021 versus sabu trade private limited the court of judicial magistrate sabu trade private limited the court of judicial magistrate salem court 2016 10 06 comprising of three hon ble judges of this court was ltd v rajkumar sabu v ms ltd v rajkumar sabu v ms 1 reportable in the supreme court of india criminal original jurisdiction transfer petition criminal no 17 of 2021 rajkumar sabu petitioner versus m s sabu trade private limited respondent j u d g m e n t aniruddha bose j the present proceeding arises out of a case instituted by the respondents sabu trade private limited invoking jurisdiction of the court of judicial magistrate no iv salem the salem court under section 156 3 of the code of criminal procedure 1973 by filing the 2 present application under section 406 of the 1973 code the petitioner wants the case to be transferred to the court of the chief judicial magistrate patiala house court new delhi the allegation of the respondents in the said case is over use of the trade mark sachamoti in respect of sago or sabudana by rajkumar sabu the petitioner according to the respondents such use is illegal and unauthorised the respondents claim proprietary right over the said trade mark the complaint was instituted on 22nd may 2017 the judicial magistrate salem salem court in short had required the police authorities to conduct a thorough enquiry with regard to genuineness of the private complaint and a report was filed by the concerned inspector of police the case was registered as cc no 82 2018 on 5th april 2018 the judicial magistrate took cognizance 3 of the alleged offences under sections 420 of the indian penal code and 103 of the trade marks act 1999 and issued summons to the petitioner the proceeding before the court at salem was instituted by the respondents represented by their managing director gopal sabu 2 allegations were primarily directed against the petitioner in the complaint but another individual shiv narayan sabu was also implicated in the proceeding before the salem court the transfer petition however has been brought by raj kumar sabu alone subsequently an application for intervention has been filed by said shiv narayan sabu he supports the petitioner s case for transfer in the intervention application the grounds on which transfer is sought by the petitioner has been broadly repeated said shiv narayan sabu has 4 shown sufficient interest to intervene in this proceeding and i allow his application for intervention hence the intervenor s cause shall be dealt simultaneously with the petitioner s case the intervenor has also alleged that he has been unnecessarily dragged into the dispute but in this proceeding that grievance of the intervenor cannot be considered i am to examine the plea for transfer of the aforesaid criminal case only before the salem court examination in chief of three prosecution witnesses have been completed on 2nd march 2019 5th april 2019 and 27th may 2019 as has been pleaded in the transfer petition next date was fixed by the salem court for appearance of the two accused persons 3 several proceedings have been instituted over the question of ownership of the trade 5 mark sachamoti and these litigations bear features of a family dispute the petitioner intervenor and gopal sabu who appears to be in effective control of the respondents business are brothers the businesses of petitioner and the respondent company also seems to have had association or connection in the past there was a burst of litigations between the two parties raj kumar and gopal in substance in the year 2016 the petitioner filed a suit in the high court of delhi on 9th june 2016 alleging infringement and passing off of the same trade mark by the respondent he claims to have registration of the subject trade mark in his favour on the strength of an assignment from his late mother chandrakanta sabu the said suit was registered as civil suit commercial no 761 of 2016 gopal sabu made complaints to the police authorities at salem 6 in the months of july and august 2016 seeking action against the petitioner on the allegation of counterfeiting the same brand referred to in the complaints inter alia as property mark these complaints were founded also on certain other counts in the suit instituted in the delhi high court counter claim was lodged by the respondents 4 the respondents had filed a suit for declaration and injunction to prevent use of the said trade mark in the court of district judge salem which was registered as os no 148 of 2016 another suit was filed on 19th august 2016 in the district court of indore but this suit had been rejected on 16th november 2016 there was also a suit by the respondents in the high court at calcutta registered as c s no 195 of 2016 proceedings in this suit however was initially stayed in 7 view of pendency of the suit in delhi high court and subsequently this court had directed the respondents to withdraw this suit both the petitioner and the respondents had filed two transfer petitions in this court before the present one these two transfer petitions were registered as being t p c no 1320 of 2018 instituted by the petitioner and t p c no 1676 of 2017 that of the respondent for transferring the opponent s suits to the courts in which the respective parties had filed their suits these transfer petitions were heard together by this court and in a common order passed on 18th july 2018 a bench comprising of three hon ble judges of this court was pleased to direct i os no 148 of 2016 titled as sabu trade pvt ltd v rajkumar sabu anr pending before the district court salem be transferred to the delhi high court for adjudication along with cs comm no 761 of 2016 titled as mr rajkumar sabu v ms kaushalya devi sabu 8 ors pending before the delhi high court ii the injunction granted by the delhi high court vide order dated 10 06 2016 and confirmed by order dated 22 01 2019 is hereby set aside the interim application for temporary injunction filed in cs comm no 761 of 2016 stands revived before the single judge of the delhi high court and may be heard on merits fao os comm no 69 2019 fao os comm no 72 2019 and fao os comm no 73 2019 filed before the division bench of the high court as against the order dated 22 01 2019 stand disposed of iii the order of the madras high court dated 07 01 2019 in cma no 846 of 2018 and cmp no 6995 of 2018 as also the order dated 02 02 2018 passed by the principal district court salem are set aside the application for injunction filed in os no 148 of 2016 by sabu trade pvt ltd through gopal sabu also stands revived and is transferred along with the said suit to the delhi high court to be heard in the transferred suit along with the application revived in cs comm no 761 of 2016 mentioned above iv the learned single judge of the delhi high court is requested to decide both the abovementioned applications for injunction in the respective suits within three months v in view of the clubbing of os no 148 of 2016 titled as sabu trade pvt ltd v rajkumar sabu anr pending before the district court salem along with cs comm no 761 of 2016 titled as mr rajkumar sabu v ms kaushalya devi sabu ors pending before the delhi high court and the fact that c s no 195 2016 pending before the calcutta high court is identical to the 9 one transferred above we think it is unnecessary for the parties to litigate and pursue the matter pending before the calcutta high court accordingly we direct the petitioner to withdraw c s no 195 2016 vi we make it clear that we have not expressed any opinion on the merits of the matter and the applications for injunction shall be decided by the high court on their own merit uninfluenced by any observations made by either this court or any high court regarding this matter 5 now the petitioner wants the criminal case pending in the salem court to be transferred to the patiala house court new delhi two main grounds have been urged on behalf of the petitioner in support of his plea argued by mr s guru krishnakumar learned senior advocate one is that the points involved in the criminal case are similar to the suits which are being tried and determined by the delhi high court the other ground taken is that the proceeding in the salem court is being conducted in tamil which the petitioner does 10 not understand it has also been urged on behalf of the petitioner that it would be more convenient for the parties to conduct the proceeding in new delhi as the civil suits are being heard in the delhi high court only the petitioner also complains about distance of over 2000 kilometres between salem and petitioner s own place of residence at indore and alleges that there is no direct connectivity between these two places the authorities relied upon by the petitioner are i sri jayendra saraswathy swamigal ii t n vs state of tamil nadu ors 2005 8 scc 771 and mrudul m damle anr vs central bureau of investigation new delhi 2012 5 scc 706 it is also asserted on behalf of the petitioner that the respondents have influence in salem and he has apprehension that he would 11 not get impartial enquiry investigation trial at salem 6 mr gopal sankarnarayan learned senior advocate has highlighted in course of his submissions on behalf of the respondent the delay in approaching this court seeking transfer of the criminal case as per his submission proceeding was registered on 5th april 2018 and has made substantial progress the complaint has reached the stage of cross examination of the complainants witnesses by the petitioner the transfer petition was filed on 12th january 2021 he also points out that personal appearance of the petitioner during trial stood dispensed with by an order of the madras high court it is also his submission that the case pending in the salem court has criminal elements which ought not to be mixed up with the civil suit relying on a judgment 12 of a coordinate bench in the case of umesh kumar sharma vs state of uttarakhand 2020 scc online sc 845 and an earlier decision of this court in the case of gurcharan dass chadha vs state of rajasthan 1966 2 scr 678 he has argued that to sustain allegation of lack of neutrality in trial as a ground for transfer credible materials will have to be brought before the court his argument is that there is no such material that would justify transfer on this ground certain decisions have been referred to on behalf of the respondents on the point that civil and criminal proceedings can go on simultaneously in relation to similar transactions but i do not consider it necessary to deal with these authorities as that point does not arise in the present proceeding which is a transfer petition 13 7 i shall proceed on the basis that the suits being heard by the delhi high court would have points which could overlap with those involved in the criminal case pending in the salem court but that very fact by itself in my view would not justify transfer of the said case substantial progress has been made in the said complaint before the salem court so far as the subject criminal case is concerned the ground of overlapping points in any event cannot justify the petitioner s case for transfer as even if the petition is allowed the criminal case shall have to proceed in the court of judicial magistrate and not in the high court where the civil suits are being heard two different judicial fora would be hearing the civil cases and the criminal case whether the civil cases and the criminal case would continue together or not is not a 14 question which falls for determination in this transfer petition moreover it does not appear that earlier any complaint was made about the proceeding being carried on at salem in fact the petitioner had applied for quashing the complaint before the madras high court but at that point of time no proceeding was taken out for transferring the criminal complaint moreover on 8th june 2018 the petitioner had appeared before the salem court and received copy of the criminal complaint this has been stated in the list of dates forming part of the transfer petition at that point of time the two earlier transfer petitions were pending those two petitions were disposed of on 18th july 2018 the petitioner does not appear to have had expressed their grievances on the basis of which this petition has been filed at that point of time barring claims being made 15 by the petitioner of the respondents being influential person in salem no material has been produced to demonstrate that such perceived influence can impair a neutral trial these allegations inter alia appear in an additional affidavit filed on behalf of the petitioner affirmed on 26th february 2021 the claims of the petitioner do not match the level of unjust influence exerted on the defence in the case of sri jayendra saraswathy swamigal supra on the basis of which the transfer petition was allowed in that case this court found the prosecuting authorities were harassing the defence team of lawyers and there were materials demonstrated by the petitioner to show that the state machinery was going out of its way in preventing the accused from defending himself the petitioner s case of possible tainted trial is unfounded and does 16 not meet the standard laid down in the cases of gurucharan dass chadha supra and umesh kumar sharma supra i cannot come to a conclusion that justice would be in peril if the case continues in the salem court i am not satisfied on the basis of materials available that the petitioner would not get impartial trial in the salem court 8 next i shall turn to the question of the problem of language faced by the petitioner the respondents seem to be carrying on their business from salem in course of hearing before me no question has been raised as regards territorial jurisdiction of the salem court in proceeding with the case the transfer of which is asked for now complaint is being made that the petitioner not being able to understand tamil language the case ought to be transferred to a court in delhi language was 17 a factor considered by this court in the case of sri jayendra saraswathy swamigal supra while selecting the court to which the case was to be transferred but language was not the criteria based on which transfer of the case was directed i have briefly discussed earlier the reason for which transfer of the case was directed the language factor weighed with this court while deciding the forum to which the case was to be transferred after decision was taken to transfer the case for certain other reasons 9 ordinarily if a court has jurisdiction to hear a case the case ought to proceed in that court only the proceeding in the salem court has not been questioned on the ground of lack of jurisdiction but on the ground contemplated in section 406 of the 1973 code jurisdiction under the aforesaid provision ought to be 18 sparingly used as held in the case of nahar singh yadav anr vs union of india ors 2011 1 scc 307 such jurisdiction cannot be exercised on mere apprehension of one of the parties that justice would not be done in a given case this was broadly the ratio in the case of gurcharan dass chadha supra in my opinion if a court hearing a case possesses the jurisdiction to proceed with the same solely based on the fact that one of the parties to that case is unable to follow the language of that court would not warrant exercise of jurisdiction of this court under section 406 of the 1973 code records reveal that aid of translator is available in the salem court which could overcome this difficulty if required the petitioner may take the aid of interpreter also as may be available 19 10 the petitioner s plea for transfer is based primarily on convenience but convenience of one of the parties cannot be a ground for allowing his application transfer of a criminal case under section 406 of the 1973 code can be directed when such transfer would be expedient for the ends of justice this expression entails factors beyond mere convenience of the parties or one of them in conducting a case before a court having jurisdiction to hear the case the parties are related and are essentially fighting commercial litigations filed in multiple jurisdictions while instituting civil suits both the parties had chosen fora some of which were away from their primary places of business or the main places of business of the defendants the ratio of the decision of this court in the case of mrudul m damle supra 20 cannot apply in the factual context of this case in that case a proceeding pending in the court of special judge cbi cases rohini courts new delhi was directed to be transferred to the special judge cbi cases court of session thane out of 92 witnesses enlisted in the charge sheet 88 were from different parts of maharashtra that was a case which this court found was not delhi centric the accused persons were based in western part of this country it was because of these reasons the case was directed to be transferred the circumstances surrounding the case pending in the salem court are entirely different in the case of rajesh talwar vs cbi 2012 4 scc 217 it was held 46 jurisdiction of a court to conduct criminal prosecution is based on the provisions of the code of criminal procedure often either the complainant or the accused have to travel across an entire state to attend to criminal proceedings 21 before a jurisdictional court in some cases to reach the venue of the trial court a complainant or an accused may have to travel across several states likewise witnesses too may also have to travel long distances in order to depose before the jurisdictional court if the plea of inconvenience for transferring the cases from one court to another on the basis of time taken to travel to the court conducting the criminal trial is accepted the provisions contained in the criminal procedure code earmarking the courts having jurisdiction to try cases would be rendered meaningless convenience or inconvenience are inconsequential so far as the mandate of law is concerned the instant plea therefore deserves outright rejection 11 for these reasons i dismiss the present transfer petition connected applications if any shall also stand disposed of 12 there shall be no order as to costs j aniruddha bose new delhi dated 7th may 2021 1 reportable in the supreme court of india criminal original jurisdiction transfer petition criminal no 17 of 2021 rajkumar sabu petitioner versus m s sabu trade private limited respondent j u d g m e n t aniruddha bose j the present proceeding arises out of a case instituted by the respondents sabu trade private limited invoking jurisdiction of the court of judicial magistrate no iv salem the salem court under section 156 3 of the code of criminal procedure 1973 by filing the 2 present application under section 406 of the 1973 code the petitioner wants the case to be transferred to the court of the chief judicial magistrate patiala house court new delhi the allegation of the respondents in the said case is over use of the trade mark sachamoti in respect of sago or sabudana by rajkumar sabu the petitioner according to the respondents such use is illegal and unauthorised the respondents claim proprietary right over the said trade mark the complaint was instituted on 22nd may 2017 the judicial magistrate salem salem court in short had required the police authorities to conduct a thorough enquiry with regard to genuineness of the private complaint and a report was filed by the concerned inspector of police the case was registered as cc no 82 2018 on 5th april 2018 the judicial magistrate took cognizance 3 of the alleged offences under sections 420 of the indian penal code and 103 of the trade marks act 1999 and issued summons to the petitioner the proceeding before the court at salem was instituted by the respondents represented by their managing director gopal sabu 2 allegations were primarily directed against the petitioner in the complaint but another individual shiv narayan sabu was also implicated in the proceeding before the salem court the transfer petition however has been brought by raj kumar sabu alone subsequently an application for intervention has been filed by said shiv narayan sabu he supports the petitioner s case for transfer in the intervention application the grounds on which transfer is sought by the petitioner has been broadly repeated said shiv narayan sabu has 4 shown sufficient interest to intervene in this proceeding and i allow his application for intervention hence the intervenor s cause shall be dealt simultaneously with the petitioner s case the intervenor has also alleged that he has been unnecessarily dragged into the dispute but in this proceeding that grievance of the intervenor cannot be considered i am to examine the plea for transfer of the aforesaid criminal case only before the salem court examination in chief of three prosecution witnesses have been completed on 2nd march 2019 5th april 2019 and 27th may 2019 as has been pleaded in the transfer petition next date was fixed by the salem court for appearance of the two accused persons 3 several proceedings have been instituted over the question of ownership of the trade 5 mark sachamoti and these litigations bear features of a family dispute the petitioner intervenor and gopal sabu who appears to be in effective control of the respondents business are brothers the businesses of petitioner and the respondent company also seems to have had association or connection in the past there was a burst of litigations between the two parties raj kumar and gopal in substance in the year 2016 the petitioner filed a suit in the high court of delhi on 9th june 2016 alleging infringement and passing off of the same trade mark by the respondent he claims to have registration of the subject trade mark in his favour on the strength of an assignment from his late mother chandrakanta sabu the said suit was registered as civil suit commercial no 761 of 2016 gopal sabu made complaints to the police authorities at salem 6 in the months of july and august 2016 seeking action against the petitioner on the allegation of counterfeiting the same brand referred to in the complaints inter alia as property mark these complaints were founded also on certain other counts in the suit instituted in the delhi high court counter claim was lodged by the respondents 4 the respondents had filed a suit for declaration and injunction to prevent use of the said trade mark in the court of district judge salem which was registered as os no 148 of 2016 another suit was filed on 19th august 2016 in the district court of indore but this suit had been rejected on 16th november 2016 there was also a suit by the respondents in the high court at calcutta registered as c s no 195 of 2016 proceedings in this suit however was initially stayed in 7 view of pendency of the suit in delhi high court and subsequently this court had directed the respondents to withdraw this suit both the petitioner and the respondents had filed two transfer petitions in this court before the present one these two transfer petitions were registered as being t p c no 1320 of 2018 instituted by the petitioner and t p c no 1676 of 2017 that of the respondent for transferring the opponent s suits to the courts in which the respective parties had filed their suits these transfer petitions were heard together by this court and in a common order passed on 18th july 2018 a bench comprising of three hon ble judges of this court was pleased to direct i os no 148 of 2016 titled as sabu trade pvt ltd v rajkumar sabu anr pending before the district court salem be transferred to the delhi high court for adjudication along with cs comm no 761 of 2016 titled as mr rajkumar sabu v ms kaushalya devi sabu 8 ors pending before the delhi high court ii the injunction granted by the delhi high court vide order dated 10 06 2016 and confirmed by order dated 22 01 2019 is hereby set aside the interim application for temporary injunction filed in cs comm no 761 of 2016 stands revived before the single judge of the delhi high court and may be heard on merits fao os comm no 69 2019 fao os comm no 72 2019 and fao os comm no 73 2019 filed before the division bench of the high court as against the order dated 22 01 2019 stand disposed of iii the order of the madras high court dated 07 01 2019 in cma no 846 of 2018 and cmp no 6995 of 2018 as also the order dated 02 02 2018 passed by the principal district court salem are set aside the application for injunction filed in os no 148 of 2016 by sabu trade pvt ltd through gopal sabu also stands revived and is transferred along with the said suit to the delhi high court to be heard in the transferred suit along with the application revived in cs comm no 761 of 2016 mentioned above iv the learned single judge of the delhi high court is requested to decide both the abovementioned applications for injunction in the respective suits within three months v in view of the clubbing of os no 148 of 2016 titled as sabu trade pvt ltd v rajkumar sabu anr pending before the district court salem along with cs comm no 761 of 2016 titled as mr rajkumar sabu v ms kaushalya devi sabu ors pending before the delhi high court and the fact that c s no 195 2016 pending before the calcutta high court is identical to the 9 one transferred above we think it is unnecessary for the parties to litigate and pursue the matter pending before the calcutta high court accordingly we direct the petitioner to withdraw c s no 195 2016 vi we make it clear that we have not expressed any opinion on the merits of the matter and the applications for injunction shall be decided by the high court on their own merit uninfluenced by any observations made by either this court or any high court regarding this matter 5 now the petitioner wants the criminal case pending in the salem court to be transferred to the patiala house court new delhi two main grounds have been urged on behalf of the petitioner in support of his plea argued by mr s guru krishnakumar learned senior advocate one is that the points involved in the criminal case are similar to the suits which are being tried and determined by the delhi high court the other ground taken is that the proceeding in the salem court is being conducted in tamil which the petitioner does 10 not understand it has also been urged on behalf of the petitioner that it would be more convenient for the parties to conduct the proceeding in new delhi as the civil suits are being heard in the delhi high court only the petitioner also complains about distance of over 2000 kilometres between salem and petitioner s own place of residence at indore and alleges that there is no direct connectivity between these two places the authorities relied upon by the petitioner are i sri jayendra saraswathy swamigal ii t n vs state of tamil nadu ors 2005 8 scc 771 and mrudul m damle anr vs central bureau of investigation new delhi 2012 5 scc 706 it is also asserted on behalf of the petitioner that the respondents have influence in salem and he has apprehension that he would 11 not get impartial enquiry investigation trial at salem 6 mr gopal sankarnarayan learned senior advocate has highlighted in course of his submissions on behalf of the respondent the delay in approaching this court seeking transfer of the criminal case as per his submission proceeding was registered on 5th april 2018 and has made substantial progress the complaint has reached the stage of cross examination of the complainants witnesses by the petitioner the transfer petition was filed on 12th january 2021 he also points out that personal appearance of the petitioner during trial stood dispensed with by an order of the madras high court it is also his submission that the case pending in the salem court has criminal elements which ought not to be mixed up with the civil suit relying on a judgment 12 of a coordinate bench in the case of umesh kumar sharma vs state of uttarakhand 2020 scc online sc 845 and an earlier decision of this court in the case of gurcharan dass chadha vs state of rajasthan 1966 2 scr 678 he has argued that to sustain allegation of lack of neutrality in trial as a ground for transfer credible materials will have to be brought before the court his argument is that there is no such material that would justify transfer on this ground certain decisions have been referred to on behalf of the respondents on the point that civil and criminal proceedings can go on simultaneously in relation to similar transactions but i do not consider it necessary to deal with these authorities as that point does not arise in the present proceeding which is a transfer petition 13 7 i shall proceed on the basis that the suits being heard by the delhi high court would have points which could overlap with those involved in the criminal case pending in the salem court but that very fact by itself in my view would not justify transfer of the said case substantial progress has been made in the said complaint before the salem court so far as the subject criminal case is concerned the ground of overlapping points in any event cannot justify the petitioner s case for transfer as even if the petition is allowed the criminal case shall have to proceed in the court of judicial magistrate and not in the high court where the civil suits are being heard two different judicial fora would be hearing the civil cases and the criminal case whether the civil cases and the criminal case would continue together or not is not a 14 question which falls for determination in this transfer petition moreover it does not appear that earlier any complaint was made about the proceeding being carried on at salem in fact the petitioner had applied for quashing the complaint before the madras high court but at that point of time no proceeding was taken out for transferring the criminal complaint moreover on 8th june 2018 the petitioner had appeared before the salem court and received copy of the criminal complaint this has been stated in the list of dates forming part of the transfer petition at that point of time the two earlier transfer petitions were pending those two petitions were disposed of on 18th july 2018 the petitioner does not appear to have had expressed their grievances on the basis of which this petition has been filed at that point of time barring claims being made 15 by the petitioner of the respondents being influential person in salem no material has been produced to demonstrate that such perceived influence can impair a neutral trial these allegations inter alia appear in an additional affidavit filed on behalf of the petitioner affirmed on 26th february 2021 the claims of the petitioner do not match the level of unjust influence exerted on the defence in the case of sri jayendra saraswathy swamigal supra on the basis of which the transfer petition was allowed in that case this court found the prosecuting authorities were harassing the defence team of lawyers and there were materials demonstrated by the petitioner to show that the state machinery was going out of its way in preventing the accused from defending himself the petitioner s case of possible tainted trial is unfounded and does 16 not meet the standard laid down in the cases of gurucharan dass chadha supra and umesh kumar sharma supra i cannot come to a conclusion that justice would be in peril if the case continues in the salem court i am not satisfied on the basis of materials available that the petitioner would not get impartial trial in the salem court 8 next i shall turn to the question of the problem of language faced by the petitioner the respondents seem to be carrying on their business from salem in course of hearing before me no question has been raised as regards territorial jurisdiction of the salem court in proceeding with the case the transfer of which is asked for now complaint is being made that the petitioner not being able to understand tamil language the case ought to be transferred to a court in delhi language was 17 a factor considered by this court in the case of sri jayendra saraswathy swamigal supra while selecting the court to which the case was to be transferred but language was not the criteria based on which transfer of the case was directed i have briefly discussed earlier the reason for which transfer of the case was directed the language factor weighed with this court while deciding the forum to which the case was to be transferred after decision was taken to transfer the case for certain other reasons 9 ordinarily if a court has jurisdiction to hear a case the case ought to proceed in that court only the proceeding in the salem court has not been questioned on the ground of lack of jurisdiction but on the ground contemplated in section 406 of the 1973 code jurisdiction under the aforesaid provision ought to be 18 sparingly used as held in the case of nahar singh yadav anr vs union of india ors 2011 1 scc 307 such jurisdiction cannot be exercised on mere apprehension of one of the parties that justice would not be done in a given case this was broadly the ratio in the case of gurcharan dass chadha supra in my opinion if a court hearing a case possesses the jurisdiction to proceed with the same solely based on the fact that one of the parties to that case is unable to follow the language of that court would not warrant exercise of jurisdiction of this court under section 406 of the 1973 code records reveal that aid of translator is available in the salem court which could overcome this difficulty if required the petitioner may take the aid of interpreter also as may be available 19 10 the petitioner s plea for transfer is based primarily on convenience but convenience of one of the parties cannot be a ground for allowing his application transfer of a criminal case under section 406 of the 1973 code can be directed when such transfer would be expedient for the ends of justice this expression entails factors beyond mere convenience of the parties or one of them in conducting a case before a court having jurisdiction to hear the case the parties are related and are essentially fighting commercial litigations filed in multiple jurisdictions while instituting civil suits both the parties had chosen fora some of which were away from their primary places of business or the main places of business of the defendants the ratio of the decision of this court in the case of mrudul m damle supra 20 cannot apply in the factual context of this case in that case a proceeding pending in the court of special judge cbi cases rohini courts new delhi was directed to be transferred to the special judge cbi cases court of session thane out of 92 witnesses enlisted in the charge sheet 88 were from different parts of maharashtra that was a case which this court found was not delhi centric the accused persons were based in western part of this country it was because of these reasons the case was directed to be transferred the circumstances surrounding the case pending in the salem court are entirely different in the case of rajesh talwar vs cbi 2012 4 scc 217 it was held 46 jurisdiction of a court to conduct criminal prosecution is based on the provisions of the code of criminal procedure often either the complainant or the accused have to travel across an entire state to attend to criminal proceedings 21 before a jurisdictional court in some cases to reach the venue of the trial court a complainant or an accused may have to travel across several states likewise witnesses too may also have to travel long distances in order to depose before the jurisdictional court if the plea of inconvenience for transferring the cases from one court to another on the basis of time taken to travel to the court conducting the criminal trial is accepted the provisions contained in the criminal procedure code earmarking the courts having jurisdiction to try cases would be rendered meaningless convenience or inconvenience are inconsequential so far as the mandate of law is concerned the instant plea therefore deserves outright rejection 11 for these reasons i dismiss the present transfer petition connected applications if any shall also stand disposed of 12 there shall be no order as to costs j aniruddha bose new delhi dated 7th may 2021 920 2020_crl a no 001269 001270 2021 court the high court criminal m p no 2655 judicial magistrate bangalore daltonganj 2019 12 17 facts leading to the present case as pleaded is that the appellant and the respondent no 2 are known to each other inasmuch as the respondent no 2 and the daughter of the appellant were pursuing their education together in london on their return to india the respondent no 2 had settled in bangalore and due to the earlier acquaintance the cordial relationship amongst the families had continued the respondent no 2 on learning that the appellant was involved in business had approached him at daltonganj and sought financial assistance to the tune of rs 1 crore so as to enable the respondent no 2 to invest the same in his business since the respondent no 2 had assured that the same would be returned the appellant placed trust in him and the appellant claims to have advanced further sum and in all a 2 total sum of rs 2 crores during the periods between january 2014 to july 2014 the said amount was paid to respondent no 2 by transferring from the account of appellant s daughter and al 1270 of 2021 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal nos 1269 1270 of 2021 arising out of slp criminal no 252 253 2020 sripati singh since deceased through appellant s his son gaurav singh versus the state of jharkhand anr respondent s j u d g m e n t a s bopanna j 1 the appellant is before this court assailing the order dated 17 12 2019 passed by the high court of jharkhand at ranchi in criminal m p no 2635 of 2017 and criminal m p no 2655 of 2017 through the said order the high court has allowed the said crl miscellaneous petitions and has set aside the orders dated 04 07 2016 and 13 06 2019 passed by the judicial magistrate first class palamau in complaint case no 1833 of 2015 the learned judicial magistrate by the order dated 04 07 2016 had taken 1 cognizance of the offence alleged against the respondent no 2 herein by the order dated 13 06 2019 the learned judicial magistrate had rejected the petition filed by the respondent no 2 seeking discharge in the said criminal complaint 2 the brief facts leading to the present case as pleaded is that the appellant and the respondent no 2 are known to each other inasmuch as the respondent no 2 and the daughter of the appellant were pursuing their education together in london on their return to india the respondent no 2 had settled in bangalore and due to the earlier acquaintance the cordial relationship amongst the families had continued the respondent no 2 on learning that the appellant was involved in business had approached him at daltonganj and sought financial assistance to the tune of rs 1 crore so as to enable the respondent no 2 to invest the same in his business since the respondent no 2 had assured that the same would be returned the appellant placed trust in him and the appellant claims to have advanced further sum and in all a 2 total sum of rs 2 crores during the periods between january 2014 to july 2014 the said amount was paid to respondent no 2 by transferring from the account of appellant s daughter and also from the account of the appellant towards the said transaction four agreements are stated to have been entered acknowledging the receipt of the loan the said agreements were reduced into writing on non judicial stamp papers bearing no b489155 b489156 b489157 and b489159 3 the respondent no 2 assured that the amount would be returned during june july 2015 towards the same three cheques amounting to rs 1 crore was handed over to the appellant thereafter three more cheques for rs 1 crore was also given the appellant is stated to have met respondent no 2 during july 2015 when the respondent no 2 assured that the amount will be repaid during october 2015 based on such assurance the appellant presented the cheques for realisation on 20 10 2015 on presentation the said cheques were returned due to insufficient funds in the bank account of respondent no 2 3 the appellant therefore got issued a legal notice as contemplated under section 138 of the negotiable instruments act n i act for short since the respondent no 2 had taken the money on the assurance that the same would be returned but had deceived the appellant the appellant contended that the respondent no 2 had cheated him and accordingly the complaint was filed both under section 420 of ipc as also section 138 of n i act the appellant had submitted the sworn statement of himself and witnesses the learned judicial magistrate through the order dated 04 07 2016 took cognizance and issued summons to the respondent no 2 4 the respondent no 2 on appearance filed a miscellaneous petition seeking discharge from the criminal proceeding which was rejected by the order dated 13 06 2019 it is in that background the respondent no 2 claiming to be aggrieved by the order dated 04 07 2016 and 13 06 2019 approached the high court in the said criminal miscellaneous petitions the high court through the impugned order has allowed the petitions filed by the 4 respondent no 2 the appellant therefore claiming to be aggrieved is before this court in these appeals 5 we have heard mr m c dhingra learned counsel for the appellant mr raj kishor choudhary learned counsel for the respondent no 1 mr keshav murthy learned counsel for respondent no 2 and perused the appeal papers 6 the learned counsel for the appellant would contend that the respondent no 2 taking advantage of the acquaintance with the family of the appellant had borrowed the amount which was to be repaid and the cheque issued was towards discharge of the said amount in the said circumstance when the cheques issued was for discharge of the legally recoverable debt and it had been dishonoured the provisions of section 138 of n i act would get attracted therefore the complaint filed by the appellant is in accordance with law it is his further contention that in the present case since respondent no 2 had gained the confidence of the appellant due to the acquaintance with his daughter and in that circumstance 5 when the amounts which had been taken by him earlier had been repaid so as to gain the confidence and having received substantial amount had at that stage not made arrangement for sufficient funds in the bank despite having issued the cheques to assure payment the same would amount to the respondent no 2 cheating the appellant by design and therefore would attract section 420 ipc it is contended that towards the amount received the same had been acknowledged by subscribing the signature to the loan agreement further when there was an undertaking to repay the same the cheque was issued towards such discharge of legally recoverable debt and the cheque on presentation after the agreed due date for repayment of the loan was dishonoured the same would constitute an offence in that regard it is contended that the learned judicial magistrate having taken note of the complaint and the sworn statements recorded by the appellant and his witnesses had taken cognizance and issued summons in such event the order passed by the learned judicial magistrate for taking cognizance and also to reject the discharge petition filed by the respondent no 2 was in 6 accordance with law it is contended that the learned judge of the high court had in fact committed an error in arriving at the conclusion that the cheque issued by the respondent no 2 was towards security and that the same could not have been treated as a cheque issued towards the discharge of legally recoverable debt it is contended that the learned judge has proceeded at a tangent and committed an error and as such the order passed by the high court calls for interference 7 to contend that the cheque issued towards discharge of the loan and presented for recovery of the same cannot be construed as issued for security has relied on the decision of this court in the case of sampelly satyanarayana rao vs indian renewable energy development agency ltd criminal appeal no 867 of 2016 and in m s womb laboratory pvt ltd vs vijay ahuja and anr criminal appeal no 1382 1383 of 2019 hence it is contended that the observation contained in the order of the high court that a cheque issued towards security cannot attract the provision of section 138 of n i 7 act is erroneous and the reference made by the high court to the decision in sudhir kr bhalla vs jagdish chand and others 2008 7 scc 137 is without basis the learned counsel therefore contends that the order passed by the high court is liable to be set aside and the criminal complaint be restored to file to be proceeded in accordance with law 8 mr keshav murthy learned counsel for respondent no 2 would contend that the learned judicial magistrate without application of mind to the fact situation had taken cognizance and issued summons and had not appropriately considered the case put forth by the respondent no 2 seeking discharge he would contend that the high court on the other hand has taken note of the entire gamut of the case and has arrived at the conclusion that the offence alleged both under section 420 ipc and section 138 of the n i act has not been made out it is contended that the claim for the sum of rs 2 crores as made in the complaint is without basis it is his case that the respondent no 2 has issued a comprehensive reply disputing the claim put forth 8 by the appellant it is contended that from the very complaint and the statement of witnesses recorded by the learned judicial magistrate it is evident that no criminal offence is made out in the instant case even if the case as put forth in the complaint is taken note at best the transaction can be considered as an advancement of loan for business purpose and even if it is assumed that the said amount was not repaid it would only give rise to civil liability and the appellants could have only filed a civil suit for recovery of the loan the statement of the witnesses more particularly the daughter of the complainant would indicate the long standing relationship between the parties and also the monetary transaction which in any event does not constitute a criminal offence it is contended that under any circumstance the offence as alleged under section 420 of ipc cannot be sustained insofar as the offence alleged against the respondent no 2 under section 138 of n i act the same would also not be sustainable when the complainant himself has relied on the loan agreement wherein reference is made to the cheque being issued as security for the loan the learned counsel contends that the 9 high court in fact has taken note of these aspects proceeded in its correct perspective and has arrived at a just conclusion which does not call for interference he therefore contends that the above appeals be dismissed 9 in the light of the rival contentions a perusal of the appeal papers would disclose that it is the very case of the appellant that he has advanced substantial amount of rs 2 crores to the respondent no 2 by way of financial assistance for business purpose while taking note of the nature of the transaction and also the proceedings initiated it is necessary for us to remain conscious of the fact that the proceedings between the parties is at the preliminary stage and any conclusive findings rendered in relation to the dispute between the parties would affect their case if ultimately the appellants were to succeed herein and the criminal proceedings are to be restored for further progress therefore what is necessary to be examined herein is as to whether the appellant has prima facie established a transaction under which there is a legally recoverable debt payable to the appellant by the 10 respondent no 2 and as to whether the cheques in question relating to which the complaint has been filed by the appellant is issued towards discharge of such legally recoverable debt in that regard what is necessary to be considered is also as to whether the cheques in question are still to be considered only as security for the said amount and whether it was not liable to be presented for recovery of the legally recoverable debt the question which would also arise for consideration is as to whether the complaint filed by the appellant should be limited to a proceeding under section 138 of n i act or on the facts involved whether the invoking of section 420 ipc was also justified 10 while considering the above aspects it is evident that the learned magistrate having referred to the complaint and sworn statement of the complainant and the witnesses has taken cognizance issued summons and has consequently arrived at the conclusion that the discharge as sought by the respondent no 2 cannot be accepted the high court on the other hand having referred to the rival 11 contentions has concluded as follows 20 from the aforesaid facts and from the documents of the complainant this court finds that long standing business transaction and inability of refunding a loan has been given a colour of criminal offence of cheating punishable under section 420 of the indian penal code a breach of trust with mens rea gives rise to a criminal prosecution in this case when i go through the evidence before charge of the complainant and the documents of the complainant i find that there were long standing business transactions between the parties since 2011 money was advanced by the complainant and his family members to the accused and the complainant witness admits that money was also transferred from the account of the accused to the account of daughter of the complainant from the evidence i find that there is no material to suggest existence of any mens rea thus this case becomes a case of simplicitor case of non refunding of loan which cannot be a basis for initiating criminal proceeding the hon ble supreme court in the case of samir sahay alias sameer sahay versus state of up anr reported in 2018 14 scc 233 held that when the dispute between the parties was ordinarily a civil dispute resulting from a breach of contract on the part of the appellant by non refunding of amount advanced the same would not constitute an offence of cheating in this case also i find that it is true case that the amount of loan has not been refunded thus this cannot come within the purview of cheating though the complainant by suppressing the material facts has tried to give a different colour thus i find that no case punishable under section 420 of the indian penal code can be made out in this case 21 further i find that it is the documents of the complainant which show that the cheques were given by way of security even if i do not believe the statement of the accused the documents of the complainant cannot be brushed aside as held earlier supported by the decision of the hon ble supreme court in the case of sudhir kumar bhalla supra a cheque given by way of security cannot attract section 138 of the negotiable instruments act since 12 the cheques were given by way of security which is evident from the complainant s documents though this fact has also been suppressed in the complaint petition i find that section 138 of the negotiable instruments act is also not attracted in this case 11 in the background of what has been taken note by us and the conclusion reached by the high court insofar as the high court arriving at the conclusion that no case punishable under section 420 ipc can be made out in these facts we are in agreement with such conclusion this is due to the fact that even as per the case of the appellant the amount advanced by the appellant is towards the business transaction and a loan agreement had been entered into between the parties under the loan agreement the period for repayment was agreed and the cheque had been issued to ensure repayment it is no doubt true that the cheques when presented for realisation were dishonoured the mere dishonourment of the cheque cannot be construed as an act on the part of the respondent no 2 with a deliberate intention to cheat and the mens rea in that regard cannot be gathered from the point the amount had been received in the present facts and circumstances there is no sufficient evidence to 13 indicate the offence under section 420 ipc is made out and therefore on that aspect we see no reason to interfere with the conclusion reached by the high court 12 having arrived at the above conclusion and also having taken note of the conclusion reached by the high court as extracted above it is noted that the high court has itself arrived at the conclusion that the instant case becomes a simpliciter case of non refunding of loan which cannot be a basis for initiating criminal proceedings the conclusion to the extent of holding that it would not constitute an offence of cheating as already indicated above would be justified however when the high court itself has accepted the fact that it is a case of non refunding of the loan amount the first aspect that there is a legally recoverable debt from the respondent no 2 to the appellant is prima facie established the only question that therefore needs consideration at our hands is as to whether the contention put forth on behalf of respondent no 2 that an offence under section 138 of the n i act is not made out as the dishonourment alleged is of the cheques which were issued by way of security and not towards discharge of any 14 debt 13 in order to consider this aspect of the matter we have at the outset taken note of the four loan agreements dated 13 08 2014 which is the subject matter herein under each of the agreements the promise made by respondent no 2 is to pay the appellant a sum of rs 50 lakhs thus the total of which would amount to rs 2 crores as contended by the appellant towards the promise to pay the repayment agreed by the respondent no 2 is to clear the total amount within june july 2015 para 5 of the loan agreement indicates that six cheques have been issued as security the claim of the appellant has been negated by the high court only due to the fact that the agreement indicates that the cheques have been given by way of security and the complainant has also stated this fact in the complaint though the high court has taken note of the decision in the case of sudhir kumar bhalla supra to hold that the cheque issued as security cannot constitute an offence the same in our opinion does not come to the aid of the respondent no 2 there is no categorical declaration by this 15 court in the said case that the cheque issued as security cannot be presented for realisation under all circumstances the facts in the said case relate to the cheques being issued and there being alterations made in the cheques towards which there was also a counter complaint filed by the drawer of the cheque hence the said decision cannot be a precedent to answer the position in this case and the high court was not justified in placing reliance on the same 14 in fact it would be apposite to take note of the decision of this court in the case of sampelly satyanarayana rao supra wherein this court while answering the issue as to what constitutes a legally enforceable debt or other liability as contained in the explanation 2 to section 138 of n i act has held as hereunder 10 we have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this court in indus airways supra with reference to the explanation to section 138 of the act and the expression for discharge of any debt or other liability occurring in section 138 of the act we are of the view that the question whether a post dated cheque is for discharge of debt or 16 liability depends on the nature of the transaction if on the date of the cheque liability or debt exists or the amount has become legally recoverable the section is attracted and not otherwise 11 reference to the facts of the present case clearly shows that though the word security is used in clause 3 l iii of the agreement the said expression refers to the cheques being towards repayment of instalments the repayment becomes due under the agreement the moment the loan is advanced and the instalment falls due it is undisputed that the loan was duly disbursed on 28th february 2002 which was prior to the date of the cheques once the loan was disbursed and instalments have fallen due on the date of the cheque as per the agreement dishonour of such cheques would fall under section 138 of the act the cheques undoubtedly represent the outstanding liability 12 judgment in indus airways supra is clearly distinguishable as already noted it was held therein that liability arising out of claim for breach of contract under section 138 which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question admittedly on the date of the cheque there was a debt liability in presenti in terms of the loan agreement as against the case of indus airways supra where the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured in that case it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled keeping in mind this fine but real distinction the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan instalment which had fallen due though such deposit of cheques towards repayment of instalments was 17 also described as security in the loan agreement in applying the judgment in indus airways supra one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque 13 crucial question to determine applicability of section 138 of the act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability while approving the views of different high courts noted earlier this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this court emphasis supplied the said conclusion was reached by this court while distinguishing the decision of this court in the case of indus airways pvt ltd vs magnum aviation pvt ltd 2014 12 scc 539 which was a case wherein the issue was of dishonour of post dated cheque issued by way of advance payment against a purchase order that had arisen for consideration in that circumstance it was held that the same cannot be considered as a cheque issued towards discharge of legally enforceable debt 18 15 further this court in the case of m s womb laboratories pvt ltd supra has held as follows 5 in our opinion the high court has muddled the entire issue the averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant the cheques were given by way of security is a matter of defence further it was not for the discharge of any debt or any liability is also a matter of defence the relevant facts to countenance the defence will have to be proved that such security could not be treated as debt or other liability of the accused that would be a triable issue we say so because handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques 6 suffice it to observe the impugned judgment of the high court cannot stand the test of judicial scrutiny the same is therefore set aside 16 a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance security in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment it is given deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound if in a transaction a loan is advanced and the borrower agrees to repay the 19 amount in a specified timeframe and issues a cheque as security to secure such repayment if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same on such presentation if the same is dishonoured the consequences contemplated under section 138 and the other provisions of n i act would flow 17 when a cheque is issued and is treated as security towards repayment of an amount with a time period being stipulated for repayment all that it ensures is that such cheque which is issued as security cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security further the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan 20 due and payable has been discharged within the agreed period the cheque issued as security cannot thereafter be presented therefore the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security these are only the defences that would be available to the drawer of the cheque in a proceedings initiated under section 138 of the n i act therefore there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque if such is the understanding a cheque would also be reduced to an on demand promissory note and in all circumstances it would only be a civil litigation to recover the amount which is not the intention of the statute when a cheque is issued even though as security the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured the holder of the cheque drawee would have the option of initiating the civil proceedings for 21 recovery or the criminal proceedings for punishment in the fact situation but in any event it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation 18 if the above principle is kept in view as already noted under the loan agreement in question the respondent no 2 though had issued the cheques as security he had also agreed to repay the amount during june july 2015 the cheque which was held as security was presented for realization on 20 10 2015 which is after the period agreed for repayment of the loan amount and the loan advanced had already fallen due for payment therefore prima facie the cheque which was taken as security had matured for payment and the appellant was entitled to present the same on dishonour of such cheque the consequences contemplated under the negotiable instruments act had befallen on respondent no 2 as indicated above the respondent no 2 may have the defence in the proceedings which will be a matter for trial in any event the respondent no 2 in the fact situation cannot 22 make a grievance with regard to the cognizance being taken by the learned magistrate or the rejection of the petition seeking discharge at this stage 19 in the background of the factual and legal position taken note supra in the instant facts the appellant cannot be non suited for proceeding with the complaint filed under section 138 of n i act merely due to the fact that the cheques presented and dishonoured are shown to have been issued as security as indicated in the loan agreement in our opinion such contention would arise only in a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount if the due date agreed for payment of debt has not arrived in the instant facts as noted the repayment as agreed by the respondent no 2 is during june july 2015 the cheque has been presented by the appellant for realisation on 20 10 2015 as on the date of presentation of the cheque for realisation the repayment of the amount as agreed under the loan agreement had matured and the amount had become due and payable 23 therefore to contend that the cheque should be held as security even after the amount had become due and payable is not sustainable further on the cheques being dishonoured the appellant had got issued a legal notice dated 21 11 2015 wherein inter alia it has been stated as follows you request to my client for loan and after accepting your word my client give you loan and advanced loan and against that you issue different cheque all together valued rs one crore and my client was also assured by you will clear the loan within june july 2015 and after that on 26 10 2015 my client produce the cheque for encashment in h d f c bank all cheque bearing no 402771 valued rs 25 lakh 402770 valued rs 25 lakh 402769 valued rs 50 lakh total rupees one crore and above numbered cheques was returned with endorsement in sufficient fund then my client feel that you have not fulfil the assurance 20 the notice as issued indicates that the appellant has at the very outset after the cheque was dishonoured intimated the respondent no 2 that he had agreed to clear the loan by june july 2015 after which the appellant had presented the cheque for encashment on 26 10 2015 and the assurance to repay has not been kept up 21 in the above circumstance the cheque though issued as security at the point when the loan was advanced it was 24 issued as an assurance to repay the amount after the debt becomes due for repayment the loan was in subsistence when the cheque was issued and had become repayable during june july 2015 and the cheque issued towards repayment was agreed to be presented thereafter if the amount was not paid in any other mode before june july 2015 it was incumbent on the respondent no 2 to arrange sufficient balance in the account to honour the cheque which was to be presented subsequent to june july 2015 22 these aspects would prima facie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent no 2 was presented on such cheque being dishonoured cause of action had arisen for issuing a notice and presenting the criminal complaint under section 138 of n i act on the payment not being made the further defence as to whether the loan had been discharged as agreed by respondent no 2 and in that circumstance the cheque which had been issued as security had not remained live for payment subsequent 25 thereto etc at best can be a defence for the respondent no 2 to be put forth and to be established in the trial in any event it was not a case for the court to either refuse to take cognizance or to discharge the respondent no 2 in the manner it has been done by the high court therefore though a criminal complaint under section 420 ipc was not sustainable in the facts and circumstances of the instant case the complaint under section 138 of the n i act was maintainable and all contentions and the defence were to be considered during the course of the trial 23 in that view the order dated 17 12 2019 passed by the high court of jharkhand in cr m p no 2635 of 2017 with cr m p no 2655 of 2017 are set aside consequently the order dated 04 07 2016 and 13 06 2019 passed by the judicial magistrate are restored the complaint bearing c c no 1839 of 2015 and 1833 of 2015 are restored to the file of the judicial magistrate limited to the complaint under section 138 of n i act to be proceeded in accordance with law 26 24 all contentions of the parties on merit are left open we make it clear that none of the observations contained herein shall have a bearing on the main trial the trial court shall independently arrive at its conclusion based on the evidence tendered before it 25 the appeals are allowed in part with no order as to costs 26 pending application if any shall also stand disposed of j m r shah j a s bopanna new delhi october 28 2021 27 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal nos 1269 1270 of 2021 arising out of slp criminal no 252 253 2020 sripati singh since deceased through appellant s his son gaurav singh versus the state of jharkhand anr respondent s j u d g m e n t a s bopanna j 1 the appellant is before this court assailing the order dated 17 12 2019 passed by the high court of jharkhand at ranchi in criminal m p no 2635 of 2017 and criminal m p no 2655 of 2017 through the said order the high court has allowed the said crl miscellaneous petitions and has set aside the orders dated 04 07 2016 and 13 06 2019 passed by the judicial magistrate first class palamau in complaint case no 1833 of 2015 the learned judicial magistrate by the order dated 04 07 2016 had taken 1 cognizance of the offence alleged against the respondent no 2 herein by the order dated 13 06 2019 the learned judicial magistrate had rejected the petition filed by the respondent no 2 seeking discharge in the said criminal complaint 2 the brief facts leading to the present case as pleaded is that the appellant and the respondent no 2 are known to each other inasmuch as the respondent no 2 and the daughter of the appellant were pursuing their education together in london on their return to india the respondent no 2 had settled in bangalore and due to the earlier acquaintance the cordial relationship amongst the families had continued the respondent no 2 on learning that the appellant was involved in business had approached him at daltonganj and sought financial assistance to the tune of rs 1 crore so as to enable the respondent no 2 to invest the same in his business since the respondent no 2 had assured that the same would be returned the appellant placed trust in him and the appellant claims to have advanced further sum and in all a 2 total sum of rs 2 crores during the periods between january 2014 to july 2014 the said amount was paid to respondent no 2 by transferring from the account of appellant s daughter and also from the account of the appellant towards the said transaction four agreements are stated to have been entered acknowledging the receipt of the loan the said agreements were reduced into writing on non judicial stamp papers bearing no b489155 b489156 b489157 and b489159 3 the respondent no 2 assured that the amount would be returned during june july 2015 towards the same three cheques amounting to rs 1 crore was handed over to the appellant thereafter three more cheques for rs 1 crore was also given the appellant is stated to have met respondent no 2 during july 2015 when the respondent no 2 assured that the amount will be repaid during october 2015 based on such assurance the appellant presented the cheques for realisation on 20 10 2015 on presentation the said cheques were returned due to insufficient funds in the bank account of respondent no 2 3 the appellant therefore got issued a legal notice as contemplated under section 138 of the negotiable instruments act n i act for short since the respondent no 2 had taken the money on the assurance that the same would be returned but had deceived the appellant the appellant contended that the respondent no 2 had cheated him and accordingly the complaint was filed both under section 420 of ipc as also section 138 of n i act the appellant had submitted the sworn statement of himself and witnesses the learned judicial magistrate through the order dated 04 07 2016 took cognizance and issued summons to the respondent no 2 4 the respondent no 2 on appearance filed a miscellaneous petition seeking discharge from the criminal proceeding which was rejected by the order dated 13 06 2019 it is in that background the respondent no 2 claiming to be aggrieved by the order dated 04 07 2016 and 13 06 2019 approached the high court in the said criminal miscellaneous petitions the high court through the impugned order has allowed the petitions filed by the 4 respondent no 2 the appellant therefore claiming to be aggrieved is before this court in these appeals 5 we have heard mr m c dhingra learned counsel for the appellant mr raj kishor choudhary learned counsel for the respondent no 1 mr keshav murthy learned counsel for respondent no 2 and perused the appeal papers 6 the learned counsel for the appellant would contend that the respondent no 2 taking advantage of the acquaintance with the family of the appellant had borrowed the amount which was to be repaid and the cheque issued was towards discharge of the said amount in the said circumstance when the cheques issued was for discharge of the legally recoverable debt and it had been dishonoured the provisions of section 138 of n i act would get attracted therefore the complaint filed by the appellant is in accordance with law it is his further contention that in the present case since respondent no 2 had gained the confidence of the appellant due to the acquaintance with his daughter and in that circumstance 5 when the amounts which had been taken by him earlier had been repaid so as to gain the confidence and having received substantial amount had at that stage not made arrangement for sufficient funds in the bank despite having issued the cheques to assure payment the same would amount to the respondent no 2 cheating the appellant by design and therefore would attract section 420 ipc it is contended that towards the amount received the same had been acknowledged by subscribing the signature to the loan agreement further when there was an undertaking to repay the same the cheque was issued towards such discharge of legally recoverable debt and the cheque on presentation after the agreed due date for repayment of the loan was dishonoured the same would constitute an offence in that regard it is contended that the learned judicial magistrate having taken note of the complaint and the sworn statements recorded by the appellant and his witnesses had taken cognizance and issued summons in such event the order passed by the learned judicial magistrate for taking cognizance and also to reject the discharge petition filed by the respondent no 2 was in 6 accordance with law it is contended that the learned judge of the high court had in fact committed an error in arriving at the conclusion that the cheque issued by the respondent no 2 was towards security and that the same could not have been treated as a cheque issued towards the discharge of legally recoverable debt it is contended that the learned judge has proceeded at a tangent and committed an error and as such the order passed by the high court calls for interference 7 to contend that the cheque issued towards discharge of the loan and presented for recovery of the same cannot be construed as issued for security has relied on the decision of this court in the case of sampelly satyanarayana rao vs indian renewable energy development agency ltd criminal appeal no 867 of 2016 and in m s womb laboratory pvt ltd vs vijay ahuja and anr criminal appeal no 1382 1383 of 2019 hence it is contended that the observation contained in the order of the high court that a cheque issued towards security cannot attract the provision of section 138 of n i 7 act is erroneous and the reference made by the high court to the decision in sudhir kr bhalla vs jagdish chand and others 2008 7 scc 137 is without basis the learned counsel therefore contends that the order passed by the high court is liable to be set aside and the criminal complaint be restored to file to be proceeded in accordance with law 8 mr keshav murthy learned counsel for respondent no 2 would contend that the learned judicial magistrate without application of mind to the fact situation had taken cognizance and issued summons and had not appropriately considered the case put forth by the respondent no 2 seeking discharge he would contend that the high court on the other hand has taken note of the entire gamut of the case and has arrived at the conclusion that the offence alleged both under section 420 ipc and section 138 of the n i act has not been made out it is contended that the claim for the sum of rs 2 crores as made in the complaint is without basis it is his case that the respondent no 2 has issued a comprehensive reply disputing the claim put forth 8 by the appellant it is contended that from the very complaint and the statement of witnesses recorded by the learned judicial magistrate it is evident that no criminal offence is made out in the instant case even if the case as put forth in the complaint is taken note at best the transaction can be considered as an advancement of loan for business purpose and even if it is assumed that the said amount was not repaid it would only give rise to civil liability and the appellants could have only filed a civil suit for recovery of the loan the statement of the witnesses more particularly the daughter of the complainant would indicate the long standing relationship between the parties and also the monetary transaction which in any event does not constitute a criminal offence it is contended that under any circumstance the offence as alleged under section 420 of ipc cannot be sustained insofar as the offence alleged against the respondent no 2 under section 138 of n i act the same would also not be sustainable when the complainant himself has relied on the loan agreement wherein reference is made to the cheque being issued as security for the loan the learned counsel contends that the 9 high court in fact has taken note of these aspects proceeded in its correct perspective and has arrived at a just conclusion which does not call for interference he therefore contends that the above appeals be dismissed 9 in the light of the rival contentions a perusal of the appeal papers would disclose that it is the very case of the appellant that he has advanced substantial amount of rs 2 crores to the respondent no 2 by way of financial assistance for business purpose while taking note of the nature of the transaction and also the proceedings initiated it is necessary for us to remain conscious of the fact that the proceedings between the parties is at the preliminary stage and any conclusive findings rendered in relation to the dispute between the parties would affect their case if ultimately the appellants were to succeed herein and the criminal proceedings are to be restored for further progress therefore what is necessary to be examined herein is as to whether the appellant has prima facie established a transaction under which there is a legally recoverable debt payable to the appellant by the 10 respondent no 2 and as to whether the cheques in question relating to which the complaint has been filed by the appellant is issued towards discharge of such legally recoverable debt in that regard what is necessary to be considered is also as to whether the cheques in question are still to be considered only as security for the said amount and whether it was not liable to be presented for recovery of the legally recoverable debt the question which would also arise for consideration is as to whether the complaint filed by the appellant should be limited to a proceeding under section 138 of n i act or on the facts involved whether the invoking of section 420 ipc was also justified 10 while considering the above aspects it is evident that the learned magistrate having referred to the complaint and sworn statement of the complainant and the witnesses has taken cognizance issued summons and has consequently arrived at the conclusion that the discharge as sought by the respondent no 2 cannot be accepted the high court on the other hand having referred to the rival 11 contentions has concluded as follows 20 from the aforesaid facts and from the documents of the complainant this court finds that long standing business transaction and inability of refunding a loan has been given a colour of criminal offence of cheating punishable under section 420 of the indian penal code a breach of trust with mens rea gives rise to a criminal prosecution in this case when i go through the evidence before charge of the complainant and the documents of the complainant i find that there were long standing business transactions between the parties since 2011 money was advanced by the complainant and his family members to the accused and the complainant witness admits that money was also transferred from the account of the accused to the account of daughter of the complainant from the evidence i find that there is no material to suggest existence of any mens rea thus this case becomes a case of simplicitor case of non refunding of loan which cannot be a basis for initiating criminal proceeding the hon ble supreme court in the case of samir sahay alias sameer sahay versus state of up anr reported in 2018 14 scc 233 held that when the dispute between the parties was ordinarily a civil dispute resulting from a breach of contract on the part of the appellant by non refunding of amount advanced the same would not constitute an offence of cheating in this case also i find that it is true case that the amount of loan has not been refunded thus this cannot come within the purview of cheating though the complainant by suppressing the material facts has tried to give a different colour thus i find that no case punishable under section 420 of the indian penal code can be made out in this case 21 further i find that it is the documents of the complainant which show that the cheques were given by way of security even if i do not believe the statement of the accused the documents of the complainant cannot be brushed aside as held earlier supported by the decision of the hon ble supreme court in the case of sudhir kumar bhalla supra a cheque given by way of security cannot attract section 138 of the negotiable instruments act since 12 the cheques were given by way of security which is evident from the complainant s documents though this fact has also been suppressed in the complaint petition i find that section 138 of the negotiable instruments act is also not attracted in this case 11 in the background of what has been taken note by us and the conclusion reached by the high court insofar as the high court arriving at the conclusion that no case punishable under section 420 ipc can be made out in these facts we are in agreement with such conclusion this is due to the fact that even as per the case of the appellant the amount advanced by the appellant is towards the business transaction and a loan agreement had been entered into between the parties under the loan agreement the period for repayment was agreed and the cheque had been issued to ensure repayment it is no doubt true that the cheques when presented for realisation were dishonoured the mere dishonourment of the cheque cannot be construed as an act on the part of the respondent no 2 with a deliberate intention to cheat and the mens rea in that regard cannot be gathered from the point the amount had been received in the present facts and circumstances there is no sufficient evidence to 13 indicate the offence under section 420 ipc is made out and therefore on that aspect we see no reason to interfere with the conclusion reached by the high court 12 having arrived at the above conclusion and also having taken note of the conclusion reached by the high court as extracted above it is noted that the high court has itself arrived at the conclusion that the instant case becomes a simpliciter case of non refunding of loan which cannot be a basis for initiating criminal proceedings the conclusion to the extent of holding that it would not constitute an offence of cheating as already indicated above would be justified however when the high court itself has accepted the fact that it is a case of non refunding of the loan amount the first aspect that there is a legally recoverable debt from the respondent no 2 to the appellant is prima facie established the only question that therefore needs consideration at our hands is as to whether the contention put forth on behalf of respondent no 2 that an offence under section 138 of the n i act is not made out as the dishonourment alleged is of the cheques which were issued by way of security and not towards discharge of any 14 debt 13 in order to consider this aspect of the matter we have at the outset taken note of the four loan agreements dated 13 08 2014 which is the subject matter herein under each of the agreements the promise made by respondent no 2 is to pay the appellant a sum of rs 50 lakhs thus the total of which would amount to rs 2 crores as contended by the appellant towards the promise to pay the repayment agreed by the respondent no 2 is to clear the total amount within june july 2015 para 5 of the loan agreement indicates that six cheques have been issued as security the claim of the appellant has been negated by the high court only due to the fact that the agreement indicates that the cheques have been given by way of security and the complainant has also stated this fact in the complaint though the high court has taken note of the decision in the case of sudhir kumar bhalla supra to hold that the cheque issued as security cannot constitute an offence the same in our opinion does not come to the aid of the respondent no 2 there is no categorical declaration by this 15 court in the said case that the cheque issued as security cannot be presented for realisation under all circumstances the facts in the said case relate to the cheques being issued and there being alterations made in the cheques towards which there was also a counter complaint filed by the drawer of the cheque hence the said decision cannot be a precedent to answer the position in this case and the high court was not justified in placing reliance on the same 14 in fact it would be apposite to take note of the decision of this court in the case of sampelly satyanarayana rao supra wherein this court while answering the issue as to what constitutes a legally enforceable debt or other liability as contained in the explanation 2 to section 138 of n i act has held as hereunder 10 we have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this court in indus airways supra with reference to the explanation to section 138 of the act and the expression for discharge of any debt or other liability occurring in section 138 of the act we are of the view that the question whether a post dated cheque is for discharge of debt or 16 liability depends on the nature of the transaction if on the date of the cheque liability or debt exists or the amount has become legally recoverable the section is attracted and not otherwise 11 reference to the facts of the present case clearly shows that though the word security is used in clause 3 l iii of the agreement the said expression refers to the cheques being towards repayment of instalments the repayment becomes due under the agreement the moment the loan is advanced and the instalment falls due it is undisputed that the loan was duly disbursed on 28th february 2002 which was prior to the date of the cheques once the loan was disbursed and instalments have fallen due on the date of the cheque as per the agreement dishonour of such cheques would fall under section 138 of the act the cheques undoubtedly represent the outstanding liability 12 judgment in indus airways supra is clearly distinguishable as already noted it was held therein that liability arising out of claim for breach of contract under section 138 which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question admittedly on the date of the cheque there was a debt liability in presenti in terms of the loan agreement as against the case of indus airways supra where the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured in that case it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled keeping in mind this fine but real distinction the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan instalment which had fallen due though such deposit of cheques towards repayment of instalments was 17 also described as security in the loan agreement in applying the judgment in indus airways supra one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque 13 crucial question to determine applicability of section 138 of the act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability while approving the views of different high courts noted earlier this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this court emphasis supplied the said conclusion was reached by this court while distinguishing the decision of this court in the case of indus airways pvt ltd vs magnum aviation pvt ltd 2014 12 scc 539 which was a case wherein the issue was of dishonour of post dated cheque issued by way of advance payment against a purchase order that had arisen for consideration in that circumstance it was held that the same cannot be considered as a cheque issued towards discharge of legally enforceable debt 18 15 further this court in the case of m s womb laboratories pvt ltd supra has held as follows 5 in our opinion the high court has muddled the entire issue the averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant the cheques were given by way of security is a matter of defence further it was not for the discharge of any debt or any liability is also a matter of defence the relevant facts to countenance the defence will have to be proved that such security could not be treated as debt or other liability of the accused that would be a triable issue we say so because handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques 6 suffice it to observe the impugned judgment of the high court cannot stand the test of judicial scrutiny the same is therefore set aside 16 a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance security in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment it is given deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound if in a transaction a loan is advanced and the borrower agrees to repay the 19 amount in a specified timeframe and issues a cheque as security to secure such repayment if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same on such presentation if the same is dishonoured the consequences contemplated under section 138 and the other provisions of n i act would flow 17 when a cheque is issued and is treated as security towards repayment of an amount with a time period being stipulated for repayment all that it ensures is that such cheque which is issued as security cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security further the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan 20 due and payable has been discharged within the agreed period the cheque issued as security cannot thereafter be presented therefore the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security these are only the defences that would be available to the drawer of the cheque in a proceedings initiated under section 138 of the n i act therefore there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque if such is the understanding a cheque would also be reduced to an on demand promissory note and in all circumstances it would only be a civil litigation to recover the amount which is not the intention of the statute when a cheque is issued even though as security the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured the holder of the cheque drawee would have the option of initiating the civil proceedings for 21 recovery or the criminal proceedings for punishment in the fact situation but in any event it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation 18 if the above principle is kept in view as already noted under the loan agreement in question the respondent no 2 though had issued the cheques as security he had also agreed to repay the amount during june july 2015 the cheque which was held as security was presented for realization on 20 10 2015 which is after the period agreed for repayment of the loan amount and the loan advanced had already fallen due for payment therefore prima facie the cheque which was taken as security had matured for payment and the appellant was entitled to present the same on dishonour of such cheque the consequences contemplated under the negotiable instruments act had befallen on respondent no 2 as indicated above the respondent no 2 may have the defence in the proceedings which will be a matter for trial in any event the respondent no 2 in the fact situation cannot 22 make a grievance with regard to the cognizance being taken by the learned magistrate or the rejection of the petition seeking discharge at this stage 19 in the background of the factual and legal position taken note supra in the instant facts the appellant cannot be non suited for proceeding with the complaint filed under section 138 of n i act merely due to the fact that the cheques presented and dishonoured are shown to have been issued as security as indicated in the loan agreement in our opinion such contention would arise only in a circumstance where the debt has not become recoverable and the cheque issued as security has not matured to be presented for recovery of the amount if the due date agreed for payment of debt has not arrived in the instant facts as noted the repayment as agreed by the respondent no 2 is during june july 2015 the cheque has been presented by the appellant for realisation on 20 10 2015 as on the date of presentation of the cheque for realisation the repayment of the amount as agreed under the loan agreement had matured and the amount had become due and payable 23 therefore to contend that the cheque should be held as security even after the amount had become due and payable is not sustainable further on the cheques being dishonoured the appellant had got issued a legal notice dated 21 11 2015 wherein inter alia it has been stated as follows you request to my client for loan and after accepting your word my client give you loan and advanced loan and against that you issue different cheque all together valued rs one crore and my client was also assured by you will clear the loan within june july 2015 and after that on 26 10 2015 my client produce the cheque for encashment in h d f c bank all cheque bearing no 402771 valued rs 25 lakh 402770 valued rs 25 lakh 402769 valued rs 50 lakh total rupees one crore and above numbered cheques was returned with endorsement in sufficient fund then my client feel that you have not fulfil the assurance 20 the notice as issued indicates that the appellant has at the very outset after the cheque was dishonoured intimated the respondent no 2 that he had agreed to clear the loan by june july 2015 after which the appellant had presented the cheque for encashment on 26 10 2015 and the assurance to repay has not been kept up 21 in the above circumstance the cheque though issued as security at the point when the loan was advanced it was 24 issued as an assurance to repay the amount after the debt becomes due for repayment the loan was in subsistence when the cheque was issued and had become repayable during june july 2015 and the cheque issued towards repayment was agreed to be presented thereafter if the amount was not paid in any other mode before june july 2015 it was incumbent on the respondent no 2 to arrange sufficient balance in the account to honour the cheque which was to be presented subsequent to june july 2015 22 these aspects would prima facie indicate that there was a transaction between the parties towards which a legally recoverable debt was claimed by the appellant and the cheque issued by the respondent no 2 was presented on such cheque being dishonoured cause of action had arisen for issuing a notice and presenting the criminal complaint under section 138 of n i act on the payment not being made the further defence as to whether the loan had been discharged as agreed by respondent no 2 and in that circumstance the cheque which had been issued as security had not remained live for payment subsequent 25 thereto etc at best can be a defence for the respondent no 2 to be put forth and to be established in the trial in any event it was not a case for the court to either refuse to take cognizance or to discharge the respondent no 2 in the manner it has been done by the high court therefore though a criminal complaint under section 420 ipc was not sustainable in the facts and circumstances of the instant case the complaint under section 138 of the n i act was maintainable and all contentions and the defence were to be considered during the course of the trial 23 in that view the order dated 17 12 2019 passed by the high court of jharkhand in cr m p no 2635 of 2017 with cr m p no 2655 of 2017 are set aside consequently the order dated 04 07 2016 and 13 06 2019 passed by the judicial magistrate are restored the complaint bearing c c no 1839 of 2015 and 1833 of 2015 are restored to the file of the judicial magistrate limited to the complaint under section 138 of n i act to be proceeded in accordance with law 26 24 all contentions of the parties on merit are left open we make it clear that none of the observations contained herein shall have a bearing on the main trial the trial court shall independently arrive at its conclusion based on the evidence tendered before it 25 the appeals are allowed in part with no order as to costs 26 pending application if any shall also stand disposed of j m r shah j a s bopanna new delhi october 28 2021 27 928 2019_crl a no 000876 000876 2021 versus state of uttar pradesh m r shah vikrama 2018 08 10 state v vikrama reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 876 of 2021 shakuntala shukla appellant versus state of uttar pradesh and another respondents with criminal appeal no 878 of 2021 criminal appeal no 877 of 2021 criminal appeal no 879 of 2021 j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment s and order s dated 08 10 2018 and 06 12 2018 passed by the high court of judicature at allahabad in criminal appeal no 1283 2018 1405 2018 1496 2018 and 1398 2018 by which the high court has 1 released the private respondents herein accused on bail pending the aforesaid criminal appeals the original complainant widow of the deceased victim has preferred the present appeals 2 at the outset it is required to be noted that the judgment and order dated 08 10 2018 in criminal appeal no 1283 of 2018 is the order first in line by which the main accused swaminath yadav came to be released on bail and so far as the other accused are concerned they are released on bail on the ground of parity and order passed in criminal appeal no 1283 of 2018 in the case of swaminath yadav therefore criminal appeal no 876 of 2021 arising out of the impugned judgment and order passed by the high court in criminal appeal no 1283 2018 is treated as a lead appeal 2 1 that all the private respondents herein accused have been convicted by the learned trial court for the offences under sections 302 149 201 r w section 120b ipc arising out of case crime no 103 96 police station bansdeeh district ballia and they are sentenced to undergo life imprisonment by the learned additional sessions judge court no 2 ballia vide judgment s and order s dated 08 02 2018 and 09 02 2018 passed in sessions trial no 230 of 1999 state v vikrama yadav and others 2 facts in nutshell 3 that the dead body of one kripa shankar shukla alias bajrang shukla was found lying in the well of one chandramani pandey on 28 10 1995 at 10 00 a m that an application was moved at the police station bansdeeh district ballia that the police party prepared the inquest report on 15 11 1995 however there was no proper investigation carried out by the police officer of police station bansdeeh district ballia that some villagers sent the application to his excellency the governor for impartial investigation of the case that on 13 12 1995 the appellant herein shakuntala shukla wife of the deceased moved an application before his excellency the president of india with the facts that she is a widow of kripa shankar shukla deceased and her husband was murdered in the night of 26 10 1995 when he was coming back from bansdeeh to his village adar and thereafter the dead body was thrown in the well to create confusion that on the said application of the appellant herein special secretary ministry of home affairs government of uttar pradesh lucknow directed for investigation of the matter by cb cid that during the investigation the names of the private respondents herein accused came into light that cb cid submitted the chargesheet against the accused swaminath yadav and others co accused under sections 147 149 302 201 218 120b ipc that the 3 learned trial court framed the charge under sections 302 149 201 120b ipc 3 1 at this stage it is required to be noted that during the investigation by crime branch it was found that one shri jainath yadav the then sub inspector of police station bansdeeh district ballia under the orders of station house officer investigated the incident of death of the deceased kripa shankar shukla and in his investigation report dated 23 12 1995 in order to save the accused deliberately on the basis of the false facts noted the fact that the deceased under the influence of liquor while going to his paramour s house fell into the well and died by drowning whereas in the post mortem report no symptoms of death by drowning were found it was also found during the investigation that even the doctor vinod kumar rai district hospital ballia had in the post mortem report of the deceased deliberately mentioned the wrong reason for death died by drowning in order to save the accused 3 2 the learned trial court therefore passed an order to prosecute the then station house officer sub inspector of police jainath yadav and the doctor vinod kumar rai 3 3 that during the trial the prosecution examined 8 main witnesses statement of one doctor chandrabhal tripathy was recorded as court witness that number of documentary evidence were also brought on 4 record that in the depositions the witnesses villagers who were examined on behalf of the prosecution specifically stated that before they gave the evidence statements they were threatened by the accused not only that but an fir was also lodged against the accused persons for giving threats for the offences under sections 504 506 ipc that all the witnesses villagers who were examined specifically stated with respect to threats administered by the accused and they were told not to give any evidence against the accused that during the investigation the prosecution also established and proved the motive that on appreciation of evidence and having specifically found from the post mortem report that the lungs of the deceased were found congested however no water was found in the lungs that the learned trial court specifically noted that despite the above si jainath yadav neither considered the above points himself nor sought any opinion in this regard from any doctor that the learned trial court also noticed that before preparing the enquiry report neither he enquired from the brother wife and son of the deceased nor recorded their statements that thereafter on appreciation of evidence more particularly the evidence of last seen with the deceased at about 8 o clock in the night on 26 10 1995 along with the accused persons and thereafter kripa shankar shukla was not seen by anybody and ultimately the dead body was found in the well at about 10 40 a m on 28 10 1995 that the 5 learned trial court vide its judgment dated 08 02 2018 convicted the private respondents herein accused persons namely vikrama yadav swaminath yadav jhingur bhar surendra kumar pandey and umesh kumar pandey for the offences under sections 302 149 201 r w 120b ipc that the learned trial court also convicted the then investigating officer jainath yadav and the doctor vinod kumar rai who performed the post mortem on the body of the deceased and stated the wrong reason of death for the offences under sections 201 r w 120b and 218 ipc 4 feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial court imposing the sentence of life imprisonment convicted accused swaminath yadav has preferred criminal appeal no 1283 2018 convicted accused surendra kumar pandey has preferred criminal appeal no 1405 2018 convicted accused jhingur bhar has preferred criminal appeal no 1496 2018 and convicted accused vikrama yadav has preferred criminal appeal no 1398 of 2018 before the high court 4 1 in the aforesaid criminal appeal no 1283 2018 accused swaminath yadav preferred criminal miscellaneous bail application being bail application no 1a 1 of 2018 praying for releasing him on bail during the pendency of the criminal appeal that by the impugned 6 judgment and order dated 08 10 2018 the high court has allowed the said bail application and has directed to release the accused swaminath yadav on bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned 4 2 order dated 08 10 2018 passed by the high court in criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1283 2018 in the case of accused swaminath yadav has been followed in other three appeals and other three accused namely surendra kumar pandey jhingur bhar and vikrama yadav are also released on bail on parity and on the ground that co accused swaminath yadav has been released on bail by a coordinate bench 5 feeling aggrieved and dissatisfied with the impugned orders passed by the high court releasing the accused on bail pending respective criminal appeals the appellant victim wife of the deceased has preferred the present criminal appeals 5 1 at this stage it is required to be noted that by the time the high court released the accused on bail they had undergone 8 months sentence only 6 shri v k mishra learned advocate has appeared on behalf of the appellant s shri sandeep narain and udayaditya banerjee learned 7 advocates have appeared on behalf of the accused in criminal appeal nos 876 and 877 of 2021 and ms srishti singh learned advocate has appeared on behalf of the state of uttar pradesh 6 1 though served nobody has appeared on behalf of the remaining accused however learned counsel appearing on behalf of the private respondents accused in criminal appeal nos 876 and 877 of 2021 have fairly assisted the court with their submissions which will cover all the cases 6 2 shri v k mishra learned advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the high court has committed a grave error in releasing the respondents accused on bail pending their respective appeals 6 3 it is submitted that while releasing the accused on bail the high court has not at all properly appreciated and considered the fact that by a detailed judgment and order and after appreciation of the entire evidence on record the learned trial court has convicted the accused for the offences under sections 302 149 201 r w 120b ipc and sentenced them to undergo life imprisonment 6 4 it is submitted that once the accused are convicted for the very serious offence under section 302 ipc by the learned trial court there shall not be any presumption of innocence thereafter and therefore the 8 high court shall be very slow in granting bail to the accused pending appeals who are convicted for the offences under sections 302 149 201 r w 120b ipc 6 5 it is further submitted that as such no reasons whatsoever have been assigned by the high court while releasing the accused on bail pending appeals it is submitted that the high court has failed to note the circumstances under which right from the very beginning the efforts were made to derail the investigation and even the trial court also convicted the then investigating officer and even the doctor who performed the post mortem for the offences under sections 201 r w 120b and 218 ipc 6 6 it is submitted that the high court has not at all properly appreciated and or noted and or considered the fact that the prosecution witnesses villagers who deposed against the accused were given threats repeatedly by the accused who were on bail and threatened them that if they give evidence against the accused they will have to suffer dire consequences 6 7 it is submitted that the high court has also failed to note that even two firs were filed during the trial for the offences under sections 504 and 506 ipc against the accused for giving threats to the complainant side and others 9 6 8 it is submitted that in the impugned judgments and orders the high court has not at all even referred to the counter affidavit filed on behalf of the state opposing bail pending appeals 6 9 it is submitted that therefore the high court while releasing the private respondents herein accused on bail pending criminal appeals against the judgment and order of conviction has not at all considered the seriousness of the offence and the gravity of the accusation against the accused and their antecedents and conduct of giving threats to the witnesses during trial and even thereafter 6 10 making the above submissions it is prayed to allow the present appeals and quash and set aside the impugned orders passed by the high court releasing the accused on bail pending criminal appeals 7 learned counsel appearing on behalf of the state has fully supported the appellant it is submitted that the high court has failed to notice and or consider the motive antecedents and conduct of the accused even during trial and the manner in which all efforts were made right from the very beginning to scuttle the fair investigation 7 1 it is submitted that as such no specific reasons have been assigned by the high court while releasing the accused on bail pending appeals it is submitted that the manner in which the high court has disposed of the bail applications and released the accused on bail 10 pending appeals is not sustainable at all it is submitted that from the impugned orders passed by the high court it is difficult to identify the submissions on behalf of the accused and even the findings recorded while releasing the accused on bail it is submitted that even the submissions on behalf of the state have not been summarised and or discussed at all 7 2 it is submitted that criminal history of two cases against the accused for the offences under sections 143 504 506 being cr no 158 1996 and cr no 23 1999 under sections 504 506 ipc are taken very lightly by the high court it is submitted that the high court ought to have appreciated that the aforesaid cases were for giving threats by the accused to the witnesses and the family members of the deceased including the appellant herein 8 learned counsel appearing on behalf of the respondents accused have vehemently submitted that in the facts and circumstances of the case no error has been committed by the high court releasing the accused on bail pending appeals 8 1 it is submitted that admittedly it is a case of circumstantial evidence and not a single witness had stated that he saw any of the accused murdering kripa sankar shukla or even throwing his dead body in the well it is submitted that even in the post mortem report the cause 11 of death was shown died by drowning it is submitted that there is no other further medical evidence showing the different cause of death 8 2 it is further submitted that during the trial the accused were on bail and even thereafter also by the impugned orders the accused are on bail and nothing is on record that thereafter they have misused the liberty granted by the court by releasing them on bail it is submitted that therefore no case is made out to cancel the bail granted by the high court 8 3 making the above submissions it is prayed to dismiss the present appeals 9 we have heard the learned counsel for the respective parties at length we have also carefully gone through the impugned judgment and order passed by the high court releasing the accused on bail pending appeal against the judgment and order of conviction for the offences punishable under sections 302 149 201 and 120b ipc 9 1 having gone through the impugned judgment and order passed by the high court releasing the accused on bail pending appeal we are at pains to note that the order granting bail to the accused pending appeal lacks total clarity on which part of the judgment and order can be said to be submissions and which part can be said to be the findings reasonings it does not even reflect the submissions on behalf 12 of the public prosecutor opposing the bail pending appeal a detailed counter affidavit was filed on behalf of the state opposing the bail pending appeal which has not been even referred to by the high court the manner in which the high court has disposed of the application under section 389 cr p c and has disposed of the application for bail pending appeal cannot be approved it is very unfortunate that by this judgment we are required to observe the importance of judgment purpose of judgment and what should be contained in the judgment 9 2 first of all let us consider what is judgment judgment means a judicial opinion which tells the story of the case what the case is about how the court is resolving the case and why judgment is defined as any decision given by a court on a question or questions or issue between the parties to a proceeding properly before court it is also defined as the decision or the sentence of a court in a legal proceeding along with the reasoning of a judge which leads him to his decision the term judgment is loosely used as judicial opinion or decision roslyn atkinson j supreme court of queensland in her speech once stated that there are four purposes for any judgment that is written i to spell out judges own thoughts ii to explain your decision to the parties 13 iii to communicate the reasons for the decision to the public and iv to provide reasons for an appeal court to consider 9 3 it is not adequate that a decision is accurate it must also be reasonable logical and easily comprehensible the judicial opinion is to be written in such a way that it elucidates in a convincing manner and proves the fact that the verdict is righteous and judicious what the court says and how it says it is equally important as what the court decides every judgment contains four basic elements and they are i statement of material relevant facts ii legal issues or questions iii deliberation to reach at decision and iv the ratio or conclusive decision a judgment should be coherent systematic and logically organised it should enable the reader to trace the fact to a logical conclusion on the basis of legal principles it is pertinent to examine the important elements in a judgment in order to fully understand the art of reading a judgment in the path of law holmes j has stressed the insentient factors that persuade a judge a judgment has to formulate findings of fact it has to decide what the relevant principles of law are and it has to apply those legal principles to the facts the important elements of a judgment are i caption 14 ii case number and citation iii facts iv issues v summary of arguments by both the parties vi application of law vii final conclusive verdict 9 4 the judgment replicates the individuality of the judge and therefore it is indispensable that it should be written with care and caution the reasoning in the judgment should be intelligible and logical clarity and precision should be the goal all conclusions should be supported by reasons duly recorded the findings and directions should be precise and specific writing judgments is an art though it involves skilful application of law and logic we are conscious of the fact that the judges may be overburdened with the pending cases and the arrears but at the same time quality can never be sacrificed for quantity unless judgment is not in a precise manner it would not have a sweeping impact there are some judgments that eventually get overruled because of lack of clarity therefore whenever a judgment is written it should have clarity on facts on submissions made on behalf of the rival parties discussion on law points and thereafter reasoning and thereafter the ultimate conclusion and the findings and thereafter the operative portion of the order there must be a clarity on the final relief granted a party to the 15 litigation must know what actually he has got by way of final relief the aforesaid aspects are to be borne in mind while writing the judgment which would reduce the burden of the appellate court too we have come across many judgments which lack clarity on facts reasoning and the findings and many a times it is very difficult to appreciate what the learned judge wants to convey through the judgment and because of that matters are required to be remanded for fresh consideration therefore it is desirable that the judgment should have a clarity both on facts and law and on submissions findings reasonings and the ultimate relief granted 10 if we consider the impugned order passed by the high court as observed hereinabove we find that there is a total lack of clarity on the submissions which part of the order is submission which part of the order is the finding and or reasoning as observed hereinabove even the submissions on behalf of the public prosecutor have not been noted and referred to though a detailed counter affidavit was filed by the state opposing the bail applications we do not approve the manner in which the high court has disposed of the application for bail pending appeal 11 even on merits also the impugned order passed by the high court releasing the accused on bail pending appeal is unsustainable the high court has not at all appreciated and considered the fact that the learned trial court on appreciation of evidence has convicted the 16 accused for the offences under sections 302 149 201 r w 120b ipc once the accused have been convicted by the learned trial court there shall not be any presumption of innocence thereafter therefore the high court shall be very slow in granting bail to the accused pending appeal who are convicted for the serious offences punishable under sections 302 149 201 r w 120b ipc 11 1 even the high court has also failed to note the circumstances under which right from the very beginning the efforts were made to delay derail the investigation it is to be noted that even the learned trial court also convicted the investigating officer and even the doctor who performed the post mortem for the offences under sections 201 r w 120b and 218 ipc 11 2 the high court has also not appreciated the conduct on the part of the accused pending investigation and even during trial the trial court has specifically observed while appreciating the evidence of the prosecution witnesses that the accused gave threats repeatedly to the prosecution witnesses and villagers and threatened them that if they give evidence against the accused they would suffer the dire consequences the high court has also not very seriously considered the two firs filed during trial for the offences under sections 504 506 ipc against the accused for giving threats to the complainant side and others the high 17 court has very casually observed that two cases for the offences under sections 504 506 ipc are of a simple nature and that these two cases will not constitute the criminal history of the accused giving threats to the complainant side and the other witnesses and the offences under sections 504 506 ipc can be said to be a very serious offence therefore the aforesaid conduct ought not to have been taken by the high court very lightly 11 3 even the high court has also not considered the seriousness of the offence and the gravity of the accusation against the accused and their antecedents and conduct by giving threats to the witnesses during trial and even thereafter the high court ought to have noted that when the high court released the accused on bail pending appeal they have undergone only 8 months sentence against the life sentence imposed by the learned trial court 12 considering the aforesaid facts and circumstances therefore even on merits also the high court has committed a grave error in releasing the accused on bail pending appeals against the judgment and order of conviction for the offences under sections 302 149 201 r w 120b ipc 13 in view of the above and for the reasons stated above the present appeals succeed the impugned judgment s and orders s dated 18 08 10 2018 and 06 12 2018 passed in criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1283 2018 criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1405 2018 criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1496 2018 and criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1398 2018 respectively releasing the private respondents herein accused on bail pending appeal namely swaminath yadav surendra kumar pandey jhingur bhar and vikrama yadav against the judgment and order of conviction passed by the learned trial court convicting them for the offences under sections 302 149 201 r w 120b ipc are hereby quashed and set aside the private respondents herein accused namely swaminath yadav surendra kumar pandey jhingur bhar and vikrama yadav are hereby directed to surrender forthwith to serve out the sentence imposed by the learned trial court failing which the learned trial court is directed to issue warrants of arrest against them and take them into custody forthwith a copy of this order be also forwarded to the concerned trial court for compliance 14 the present appeals are allowed in the aforesaid terms it goes without saying that the high court shall decide the pending appeals on 19 their own merits in accordance with law uninfluenced by any observations made in this judgment j dr dhananjaya y chandrachud new delhi j september 07 2021 m r shah 20 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 876 of 2021 shakuntala shukla appellant versus state of uttar pradesh and another respondents with criminal appeal no 878 of 2021 criminal appeal no 877 of 2021 criminal appeal no 879 of 2021 j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment s and order s dated 08 10 2018 and 06 12 2018 passed by the high court of judicature at allahabad in criminal appeal no 1283 2018 1405 2018 1496 2018 and 1398 2018 by which the high court has 1 released the private respondents herein accused on bail pending the aforesaid criminal appeals the original complainant widow of the deceased victim has preferred the present appeals 2 at the outset it is required to be noted that the judgment and order dated 08 10 2018 in criminal appeal no 1283 of 2018 is the order first in line by which the main accused swaminath yadav came to be released on bail and so far as the other accused are concerned they are released on bail on the ground of parity and order passed in criminal appeal no 1283 of 2018 in the case of swaminath yadav therefore criminal appeal no 876 of 2021 arising out of the impugned judgment and order passed by the high court in criminal appeal no 1283 2018 is treated as a lead appeal 2 1 that all the private respondents herein accused have been convicted by the learned trial court for the offences under sections 302 149 201 r w section 120b ipc arising out of case crime no 103 96 police station bansdeeh district ballia and they are sentenced to undergo life imprisonment by the learned additional sessions judge court no 2 ballia vide judgment s and order s dated 08 02 2018 and 09 02 2018 passed in sessions trial no 230 of 1999 state v vikrama yadav and others 2 facts in nutshell 3 that the dead body of one kripa shankar shukla alias bajrang shukla was found lying in the well of one chandramani pandey on 28 10 1995 at 10 00 a m that an application was moved at the police station bansdeeh district ballia that the police party prepared the inquest report on 15 11 1995 however there was no proper investigation carried out by the police officer of police station bansdeeh district ballia that some villagers sent the application to his excellency the governor for impartial investigation of the case that on 13 12 1995 the appellant herein shakuntala shukla wife of the deceased moved an application before his excellency the president of india with the facts that she is a widow of kripa shankar shukla deceased and her husband was murdered in the night of 26 10 1995 when he was coming back from bansdeeh to his village adar and thereafter the dead body was thrown in the well to create confusion that on the said application of the appellant herein special secretary ministry of home affairs government of uttar pradesh lucknow directed for investigation of the matter by cb cid that during the investigation the names of the private respondents herein accused came into light that cb cid submitted the chargesheet against the accused swaminath yadav and others co accused under sections 147 149 302 201 218 120b ipc that the 3 learned trial court framed the charge under sections 302 149 201 120b ipc 3 1 at this stage it is required to be noted that during the investigation by crime branch it was found that one shri jainath yadav the then sub inspector of police station bansdeeh district ballia under the orders of station house officer investigated the incident of death of the deceased kripa shankar shukla and in his investigation report dated 23 12 1995 in order to save the accused deliberately on the basis of the false facts noted the fact that the deceased under the influence of liquor while going to his paramour s house fell into the well and died by drowning whereas in the post mortem report no symptoms of death by drowning were found it was also found during the investigation that even the doctor vinod kumar rai district hospital ballia had in the post mortem report of the deceased deliberately mentioned the wrong reason for death died by drowning in order to save the accused 3 2 the learned trial court therefore passed an order to prosecute the then station house officer sub inspector of police jainath yadav and the doctor vinod kumar rai 3 3 that during the trial the prosecution examined 8 main witnesses statement of one doctor chandrabhal tripathy was recorded as court witness that number of documentary evidence were also brought on 4 record that in the depositions the witnesses villagers who were examined on behalf of the prosecution specifically stated that before they gave the evidence statements they were threatened by the accused not only that but an fir was also lodged against the accused persons for giving threats for the offences under sections 504 506 ipc that all the witnesses villagers who were examined specifically stated with respect to threats administered by the accused and they were told not to give any evidence against the accused that during the investigation the prosecution also established and proved the motive that on appreciation of evidence and having specifically found from the post mortem report that the lungs of the deceased were found congested however no water was found in the lungs that the learned trial court specifically noted that despite the above si jainath yadav neither considered the above points himself nor sought any opinion in this regard from any doctor that the learned trial court also noticed that before preparing the enquiry report neither he enquired from the brother wife and son of the deceased nor recorded their statements that thereafter on appreciation of evidence more particularly the evidence of last seen with the deceased at about 8 o clock in the night on 26 10 1995 along with the accused persons and thereafter kripa shankar shukla was not seen by anybody and ultimately the dead body was found in the well at about 10 40 a m on 28 10 1995 that the 5 learned trial court vide its judgment dated 08 02 2018 convicted the private respondents herein accused persons namely vikrama yadav swaminath yadav jhingur bhar surendra kumar pandey and umesh kumar pandey for the offences under sections 302 149 201 r w 120b ipc that the learned trial court also convicted the then investigating officer jainath yadav and the doctor vinod kumar rai who performed the post mortem on the body of the deceased and stated the wrong reason of death for the offences under sections 201 r w 120b and 218 ipc 4 feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial court imposing the sentence of life imprisonment convicted accused swaminath yadav has preferred criminal appeal no 1283 2018 convicted accused surendra kumar pandey has preferred criminal appeal no 1405 2018 convicted accused jhingur bhar has preferred criminal appeal no 1496 2018 and convicted accused vikrama yadav has preferred criminal appeal no 1398 of 2018 before the high court 4 1 in the aforesaid criminal appeal no 1283 2018 accused swaminath yadav preferred criminal miscellaneous bail application being bail application no 1a 1 of 2018 praying for releasing him on bail during the pendency of the criminal appeal that by the impugned 6 judgment and order dated 08 10 2018 the high court has allowed the said bail application and has directed to release the accused swaminath yadav on bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned 4 2 order dated 08 10 2018 passed by the high court in criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1283 2018 in the case of accused swaminath yadav has been followed in other three appeals and other three accused namely surendra kumar pandey jhingur bhar and vikrama yadav are also released on bail on parity and on the ground that co accused swaminath yadav has been released on bail by a coordinate bench 5 feeling aggrieved and dissatisfied with the impugned orders passed by the high court releasing the accused on bail pending respective criminal appeals the appellant victim wife of the deceased has preferred the present criminal appeals 5 1 at this stage it is required to be noted that by the time the high court released the accused on bail they had undergone 8 months sentence only 6 shri v k mishra learned advocate has appeared on behalf of the appellant s shri sandeep narain and udayaditya banerjee learned 7 advocates have appeared on behalf of the accused in criminal appeal nos 876 and 877 of 2021 and ms srishti singh learned advocate has appeared on behalf of the state of uttar pradesh 6 1 though served nobody has appeared on behalf of the remaining accused however learned counsel appearing on behalf of the private respondents accused in criminal appeal nos 876 and 877 of 2021 have fairly assisted the court with their submissions which will cover all the cases 6 2 shri v k mishra learned advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the high court has committed a grave error in releasing the respondents accused on bail pending their respective appeals 6 3 it is submitted that while releasing the accused on bail the high court has not at all properly appreciated and considered the fact that by a detailed judgment and order and after appreciation of the entire evidence on record the learned trial court has convicted the accused for the offences under sections 302 149 201 r w 120b ipc and sentenced them to undergo life imprisonment 6 4 it is submitted that once the accused are convicted for the very serious offence under section 302 ipc by the learned trial court there shall not be any presumption of innocence thereafter and therefore the 8 high court shall be very slow in granting bail to the accused pending appeals who are convicted for the offences under sections 302 149 201 r w 120b ipc 6 5 it is further submitted that as such no reasons whatsoever have been assigned by the high court while releasing the accused on bail pending appeals it is submitted that the high court has failed to note the circumstances under which right from the very beginning the efforts were made to derail the investigation and even the trial court also convicted the then investigating officer and even the doctor who performed the post mortem for the offences under sections 201 r w 120b and 218 ipc 6 6 it is submitted that the high court has not at all properly appreciated and or noted and or considered the fact that the prosecution witnesses villagers who deposed against the accused were given threats repeatedly by the accused who were on bail and threatened them that if they give evidence against the accused they will have to suffer dire consequences 6 7 it is submitted that the high court has also failed to note that even two firs were filed during the trial for the offences under sections 504 and 506 ipc against the accused for giving threats to the complainant side and others 9 6 8 it is submitted that in the impugned judgments and orders the high court has not at all even referred to the counter affidavit filed on behalf of the state opposing bail pending appeals 6 9 it is submitted that therefore the high court while releasing the private respondents herein accused on bail pending criminal appeals against the judgment and order of conviction has not at all considered the seriousness of the offence and the gravity of the accusation against the accused and their antecedents and conduct of giving threats to the witnesses during trial and even thereafter 6 10 making the above submissions it is prayed to allow the present appeals and quash and set aside the impugned orders passed by the high court releasing the accused on bail pending criminal appeals 7 learned counsel appearing on behalf of the state has fully supported the appellant it is submitted that the high court has failed to notice and or consider the motive antecedents and conduct of the accused even during trial and the manner in which all efforts were made right from the very beginning to scuttle the fair investigation 7 1 it is submitted that as such no specific reasons have been assigned by the high court while releasing the accused on bail pending appeals it is submitted that the manner in which the high court has disposed of the bail applications and released the accused on bail 10 pending appeals is not sustainable at all it is submitted that from the impugned orders passed by the high court it is difficult to identify the submissions on behalf of the accused and even the findings recorded while releasing the accused on bail it is submitted that even the submissions on behalf of the state have not been summarised and or discussed at all 7 2 it is submitted that criminal history of two cases against the accused for the offences under sections 143 504 506 being cr no 158 1996 and cr no 23 1999 under sections 504 506 ipc are taken very lightly by the high court it is submitted that the high court ought to have appreciated that the aforesaid cases were for giving threats by the accused to the witnesses and the family members of the deceased including the appellant herein 8 learned counsel appearing on behalf of the respondents accused have vehemently submitted that in the facts and circumstances of the case no error has been committed by the high court releasing the accused on bail pending appeals 8 1 it is submitted that admittedly it is a case of circumstantial evidence and not a single witness had stated that he saw any of the accused murdering kripa sankar shukla or even throwing his dead body in the well it is submitted that even in the post mortem report the cause 11 of death was shown died by drowning it is submitted that there is no other further medical evidence showing the different cause of death 8 2 it is further submitted that during the trial the accused were on bail and even thereafter also by the impugned orders the accused are on bail and nothing is on record that thereafter they have misused the liberty granted by the court by releasing them on bail it is submitted that therefore no case is made out to cancel the bail granted by the high court 8 3 making the above submissions it is prayed to dismiss the present appeals 9 we have heard the learned counsel for the respective parties at length we have also carefully gone through the impugned judgment and order passed by the high court releasing the accused on bail pending appeal against the judgment and order of conviction for the offences punishable under sections 302 149 201 and 120b ipc 9 1 having gone through the impugned judgment and order passed by the high court releasing the accused on bail pending appeal we are at pains to note that the order granting bail to the accused pending appeal lacks total clarity on which part of the judgment and order can be said to be submissions and which part can be said to be the findings reasonings it does not even reflect the submissions on behalf 12 of the public prosecutor opposing the bail pending appeal a detailed counter affidavit was filed on behalf of the state opposing the bail pending appeal which has not been even referred to by the high court the manner in which the high court has disposed of the application under section 389 cr p c and has disposed of the application for bail pending appeal cannot be approved it is very unfortunate that by this judgment we are required to observe the importance of judgment purpose of judgment and what should be contained in the judgment 9 2 first of all let us consider what is judgment judgment means a judicial opinion which tells the story of the case what the case is about how the court is resolving the case and why judgment is defined as any decision given by a court on a question or questions or issue between the parties to a proceeding properly before court it is also defined as the decision or the sentence of a court in a legal proceeding along with the reasoning of a judge which leads him to his decision the term judgment is loosely used as judicial opinion or decision roslyn atkinson j supreme court of queensland in her speech once stated that there are four purposes for any judgment that is written i to spell out judges own thoughts ii to explain your decision to the parties 13 iii to communicate the reasons for the decision to the public and iv to provide reasons for an appeal court to consider 9 3 it is not adequate that a decision is accurate it must also be reasonable logical and easily comprehensible the judicial opinion is to be written in such a way that it elucidates in a convincing manner and proves the fact that the verdict is righteous and judicious what the court says and how it says it is equally important as what the court decides every judgment contains four basic elements and they are i statement of material relevant facts ii legal issues or questions iii deliberation to reach at decision and iv the ratio or conclusive decision a judgment should be coherent systematic and logically organised it should enable the reader to trace the fact to a logical conclusion on the basis of legal principles it is pertinent to examine the important elements in a judgment in order to fully understand the art of reading a judgment in the path of law holmes j has stressed the insentient factors that persuade a judge a judgment has to formulate findings of fact it has to decide what the relevant principles of law are and it has to apply those legal principles to the facts the important elements of a judgment are i caption 14 ii case number and citation iii facts iv issues v summary of arguments by both the parties vi application of law vii final conclusive verdict 9 4 the judgment replicates the individuality of the judge and therefore it is indispensable that it should be written with care and caution the reasoning in the judgment should be intelligible and logical clarity and precision should be the goal all conclusions should be supported by reasons duly recorded the findings and directions should be precise and specific writing judgments is an art though it involves skilful application of law and logic we are conscious of the fact that the judges may be overburdened with the pending cases and the arrears but at the same time quality can never be sacrificed for quantity unless judgment is not in a precise manner it would not have a sweeping impact there are some judgments that eventually get overruled because of lack of clarity therefore whenever a judgment is written it should have clarity on facts on submissions made on behalf of the rival parties discussion on law points and thereafter reasoning and thereafter the ultimate conclusion and the findings and thereafter the operative portion of the order there must be a clarity on the final relief granted a party to the 15 litigation must know what actually he has got by way of final relief the aforesaid aspects are to be borne in mind while writing the judgment which would reduce the burden of the appellate court too we have come across many judgments which lack clarity on facts reasoning and the findings and many a times it is very difficult to appreciate what the learned judge wants to convey through the judgment and because of that matters are required to be remanded for fresh consideration therefore it is desirable that the judgment should have a clarity both on facts and law and on submissions findings reasonings and the ultimate relief granted 10 if we consider the impugned order passed by the high court as observed hereinabove we find that there is a total lack of clarity on the submissions which part of the order is submission which part of the order is the finding and or reasoning as observed hereinabove even the submissions on behalf of the public prosecutor have not been noted and referred to though a detailed counter affidavit was filed by the state opposing the bail applications we do not approve the manner in which the high court has disposed of the application for bail pending appeal 11 even on merits also the impugned order passed by the high court releasing the accused on bail pending appeal is unsustainable the high court has not at all appreciated and considered the fact that the learned trial court on appreciation of evidence has convicted the 16 accused for the offences under sections 302 149 201 r w 120b ipc once the accused have been convicted by the learned trial court there shall not be any presumption of innocence thereafter therefore the high court shall be very slow in granting bail to the accused pending appeal who are convicted for the serious offences punishable under sections 302 149 201 r w 120b ipc 11 1 even the high court has also failed to note the circumstances under which right from the very beginning the efforts were made to delay derail the investigation it is to be noted that even the learned trial court also convicted the investigating officer and even the doctor who performed the post mortem for the offences under sections 201 r w 120b and 218 ipc 11 2 the high court has also not appreciated the conduct on the part of the accused pending investigation and even during trial the trial court has specifically observed while appreciating the evidence of the prosecution witnesses that the accused gave threats repeatedly to the prosecution witnesses and villagers and threatened them that if they give evidence against the accused they would suffer the dire consequences the high court has also not very seriously considered the two firs filed during trial for the offences under sections 504 506 ipc against the accused for giving threats to the complainant side and others the high 17 court has very casually observed that two cases for the offences under sections 504 506 ipc are of a simple nature and that these two cases will not constitute the criminal history of the accused giving threats to the complainant side and the other witnesses and the offences under sections 504 506 ipc can be said to be a very serious offence therefore the aforesaid conduct ought not to have been taken by the high court very lightly 11 3 even the high court has also not considered the seriousness of the offence and the gravity of the accusation against the accused and their antecedents and conduct by giving threats to the witnesses during trial and even thereafter the high court ought to have noted that when the high court released the accused on bail pending appeal they have undergone only 8 months sentence against the life sentence imposed by the learned trial court 12 considering the aforesaid facts and circumstances therefore even on merits also the high court has committed a grave error in releasing the accused on bail pending appeals against the judgment and order of conviction for the offences under sections 302 149 201 r w 120b ipc 13 in view of the above and for the reasons stated above the present appeals succeed the impugned judgment s and orders s dated 18 08 10 2018 and 06 12 2018 passed in criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1283 2018 criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1405 2018 criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1496 2018 and criminal miscellaneous bail application no 1a 1 of 2018 in criminal appeal no 1398 2018 respectively releasing the private respondents herein accused on bail pending appeal namely swaminath yadav surendra kumar pandey jhingur bhar and vikrama yadav against the judgment and order of conviction passed by the learned trial court convicting them for the offences under sections 302 149 201 r w 120b ipc are hereby quashed and set aside the private respondents herein accused namely swaminath yadav surendra kumar pandey jhingur bhar and vikrama yadav are hereby directed to surrender forthwith to serve out the sentence imposed by the learned trial court failing which the learned trial court is directed to issue warrants of arrest against them and take them into custody forthwith a copy of this order be also forwarded to the concerned trial court for compliance 14 the present appeals are allowed in the aforesaid terms it goes without saying that the high court shall decide the pending appeals on 19 their own merits in accordance with law uninfluenced by any observations made in this judgment j dr dhananjaya y chandrachud new delhi j september 07 2021 m r shah 20 976 2010_c a no 004750 004750 2011 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4750 of 2011 geeta gupta appellant ramesh chandra dwivedi ors respondents 2025 10 09 4750 of 2011 misra v rama tandon v addl 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4750 of 2011 geeta gupta appellant v ramesh chandra dwivedi ors respondents j u d g m e n t abhay s oka j 1 by this appeal the appellant who was the writ petitioner before the high court at allahabad has taken an exception to the judgment and order dated 9th october 2009 passed by the learned single judge of allahabad high court 2 the appellant is claiming to be the owner of premises no 74 13 collectorganj kanpur nagar uttar pradesh the appellant acquired the said premises by a sale deed dated 13th march 1994 executed by power of attorney holder on behalf of the original owners shri vishnu swaroop mishra and shri gopal 2 swaroop mishra the petitioner claimed that the physical possession of the premises subject matter of the sale deed was handed over to her by her vendors which includes two gaddis two godowns and a tin shed collectively referred as the disputed premises which was earlier given by the appellant s vendor to one dhruv narayan tripathi by way of tenancy 3 an application was made by the second respondent for allotment of the disputed premises by invoking section 16 of the uttar pradesh urban buildings regulation of letting rent and eviction act 1972 for short the the said act the application was made on the premise that the disputed premises have fallen vacant in accordance with sub section 4 of section 12 of the said act on the basis of the said application in accordance with rule 8 2 of the uttar pradesh urban buildings regulation of letting rent and eviction rules 1972 an inspection report dated 20th may 1995 was submitted to the district magistrate the report recorded that the first respondent ramesh chandra dwivedi was carrying on business in the disputed premises in the name and style of m s ramesh chandra pravesh kumar it was stated in the report that first respondent informed that he was inducted as a tenant by shri 3 dhruv narayan tripathi in the disputed premises in november 1975 at monthly rent of rs 500 the district magistrate addl city magistrate vi while exercising the powers under the said act held that on the basis of the agreement dated 15th november 1975 the first respondent was inducted as a tenant by the said dhruv narayan tripathi acting as a power of attorney holder and manager of the owners he held that the original owners never objected to the action of the said dhruv narayan tripathi the addl city magistrate held that the first respondent was in continuous possession as a tenant on the basis of the said agreement dated 15th november 1975 and therefore he has become a tenant of the disputed premises hence it was held that the disputed premises were not vacant within the meaning of sub section 4 of section 12 of the said act 4 a writ petition was preferred by the petitioner against the said judgment and order of the addl city magistrate which was rejected by the impugned judgment and order dated 15th november 1975 5 the learned counsel appearing for the appellant in support of the appeal submitted that the said dhruv narayan tripathi 4 had no authority to induct the first respondent as a tenant on behalf of the predecessors in title of the petitioner she submitted that the said dhruv narayan tripathi was the tenant inducted by the predecessors in title of the appellant she submitted that on 5th july 1976 the disputed premises were vacant she submitted that the petitioner purchased the property in the year 1994 and from that day she has not received any income from the disputed premises she submitted that the writ petition before the allahabad high court was of the year 1997 which was decided on 09th october 2009 and that the present appeal is of the year 2011 thus the submission is that during the last 27 years the appellant has not received any benefit from the disputed premises 6 the learned counsel appearing for the appellant placed reliance on the decisions of the apex court in the case of achal misra v rama shanker singh ors 1 ram murti devi v pushpa devi ors 2 and harish tandon v addl district magistrate allahabad u p ors 3 11 2005 5 scc 531 2 2017 15 scc 230 3 1995 1 scc 537 2 3 5 7 the learned counsel appearing for the first respondent invited our attention to the findings recorded by the addl city magistrate holding that the first respondent has been in possession of the disputed premises since 1975 and is paying rent even prior to 5th july 1976 he invited our attention to the deposit of the rent made by the first respondent in the court of civil judge junior division kanpur nagar by taking recourse to sub section 1 of section 30 of the said act he submitted that as per his instructions the first respondent has been regularly depositing the rent in the said proceedings and even if some part of the rent is not deposited the first respondent shall do so 8 the learned counsel appearing for the appellant by way of rejoinder to the submissions made by the learned counsel appearing for the first respondent urged that it will be unjust to drive the appellant to file a suit for eviction 27 years after she purchased the disputed premises 9 we have carefully considered the submissions we have perused the material on record as well as the provisions of the said act sub section 1 of section 12 incorporates the concept of deemed vacancy of the building in certain cases 6 under clause b of sub section 1 of section 12 a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family sub section 2 of section 12 lays down that in case of non residential buildings where a tenant carrying on business in the building admits a person who is not a member of his family as a partner the tenant shall be deemed to have ceased to occupy the building sub section 4 of section 12 of the said act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub sections 1 or 2 of section 12 shall be deemed to be vacant 10 under clause a of sub section 1 of section 16 of the said act the district magistrate is empowered to require any landlord to let any building which has fallen vacant to any person specified in the order 11 section 14 of the said act is material which is thus 14 regularisation or occupation of existing tenants notwithstanding anything contained in this act or any other law for the time being in force any licensee within the meaning of section 2 a or a tenant in occupation of a building with the consent of the landlord 7 immediately before the commencement of the uttar pradesh urban buildings regulation of letting rent and eviction amendment act 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building under section 14 a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the u p urban buildings regulation of letting rent and eviction amendment act 1976 shall be deemed to an authorised tenant the date of commencement of the amendment act is 5th july 1976 12 the first respondent relied upon the agreement dated 15th november 1975 purportedly executed by the said dhruv narayan tripathi claiming to be the power of attorney holder and manager of the original owners the first respondent is the second party to the said agreement on whom tenancy in respect of the disputed premises was conferred the finding of fact recorded by the addl city magistrate is that the original owners never denied that the said dhruv narayan tripathi was their attorney or manager and that the original owners neither served any notice nor filed a suit for eviction in the counter 8 the first respondent has relied upon the said agreement at annexure r 4 in paragraph 5 in the rejoinder the appellant alleged that the said document was fabricated however the petitioner has not produced on record anything to show that from 1975 to 1994 the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975 thus the first respondent was inducted in possession as a tenant prior to 5th july 1976 the finding recorded by the addl city magistrate is that to the presence of the first respondent the predecessors in title of the appellant had never raised any objection right from the year 1975 therefore the addl city magistrate concluded that in absence of the evidence of predecessors in title of the appellant it is very difficult to accept that right from the year 1975 the first respondent continued to be in possession without the consent of the original owners there is nothing wrong about this inference drawn by the addl magistrate that the first respondent was inducted with the consent of the predecessors in title of the appellant we find no error in the said view taken by the addl city magistrate and confirmed by the high court 9 13 as the first respondent was a tenant in possession on 5th july 1976 with the consent of the original owners he shall be deemed to be a tenant by virtue of section 14 of the said act 14 therefore there is no reason to find fault with the order of the addl city magistrate by virtue of section 14 the first respondent gets the protection as a tenant under the said act therefore if the appellant wants the first respondent to be evicted she will have to take recourse to section 20 of the said act depending upon the circumstances she has also an option to take recourse to section 21 of the said act 15 we have carefully perused the decisions relied upon by the appellant the decision in the case of achal misra supra holds that an order notifying vacancy under section 12 of the said act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said act even the decision in the case of harish tandon supra has no bearing on the controversy in this appeal lastly the decision in the case of ram murti devi supra does not deal with the issue involved it deals with the issue of unlawful subletting none of these decisions have any application to the facts of this case 10 16 though there is no merit in the appeal it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises in the objections filed by the first respondent he has specifically taken a stand that the first respondent has filed misc case no 284 70 04 in the court of civil judge junior division at kanpur nagar under sub section 1 of section 30 of the said act the learned counsel appearing for first respondent claimed that the entire amount of rent has been deposited in the said case 17 we direct the first respondent to deposit all the arrears of rent if any up to 31st august 2021 within a period of six weeks from today and thereafter continue to regularly deposit the rent in the aforesaid proceedings he can also pay the amount to the petitioner the petitioner can always apply for withdrawal of the rent amount in accordance with sub section 3 of section 30 of the said act if eviction proceedings are filed by the petitioner considering the case of the petitioner that she is deprived of the benefit of the disputed premises right from year 1994 the concerned authority or the court as the case may be shall give priority to the disposal of the eviction proceedings 11 18 subject to what is directed above there is no merit in the appeal and the same is accordingly dismissed j ajay rastogi j abhay s oka new delhi september 20 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4750 of 2011 geeta gupta appellant v ramesh chandra dwivedi ors respondents j u d g m e n t abhay s oka j 1 by this appeal the appellant who was the writ petitioner before the high court at allahabad has taken an exception to the judgment and order dated 9th october 2009 passed by the learned single judge of allahabad high court 2 the appellant is claiming to be the owner of premises no 74 13 collectorganj kanpur nagar uttar pradesh the appellant acquired the said premises by a sale deed dated 13th march 1994 executed by power of attorney holder on behalf of the original owners shri vishnu swaroop mishra and shri gopal 2 swaroop mishra the petitioner claimed that the physical possession of the premises subject matter of the sale deed was handed over to her by her vendors which includes two gaddis two godowns and a tin shed collectively referred as the disputed premises which was earlier given by the appellant s vendor to one dhruv narayan tripathi by way of tenancy 3 an application was made by the second respondent for allotment of the disputed premises by invoking section 16 of the uttar pradesh urban buildings regulation of letting rent and eviction act 1972 for short the the said act the application was made on the premise that the disputed premises have fallen vacant in accordance with sub section 4 of section 12 of the said act on the basis of the said application in accordance with rule 8 2 of the uttar pradesh urban buildings regulation of letting rent and eviction rules 1972 an inspection report dated 20th may 1995 was submitted to the district magistrate the report recorded that the first respondent ramesh chandra dwivedi was carrying on business in the disputed premises in the name and style of m s ramesh chandra pravesh kumar it was stated in the report that first respondent informed that he was inducted as a tenant by shri 3 dhruv narayan tripathi in the disputed premises in november 1975 at monthly rent of rs 500 the district magistrate addl city magistrate vi while exercising the powers under the said act held that on the basis of the agreement dated 15th november 1975 the first respondent was inducted as a tenant by the said dhruv narayan tripathi acting as a power of attorney holder and manager of the owners he held that the original owners never objected to the action of the said dhruv narayan tripathi the addl city magistrate held that the first respondent was in continuous possession as a tenant on the basis of the said agreement dated 15th november 1975 and therefore he has become a tenant of the disputed premises hence it was held that the disputed premises were not vacant within the meaning of sub section 4 of section 12 of the said act 4 a writ petition was preferred by the petitioner against the said judgment and order of the addl city magistrate which was rejected by the impugned judgment and order dated 15th november 1975 5 the learned counsel appearing for the appellant in support of the appeal submitted that the said dhruv narayan tripathi 4 had no authority to induct the first respondent as a tenant on behalf of the predecessors in title of the petitioner she submitted that the said dhruv narayan tripathi was the tenant inducted by the predecessors in title of the appellant she submitted that on 5th july 1976 the disputed premises were vacant she submitted that the petitioner purchased the property in the year 1994 and from that day she has not received any income from the disputed premises she submitted that the writ petition before the allahabad high court was of the year 1997 which was decided on 09th october 2009 and that the present appeal is of the year 2011 thus the submission is that during the last 27 years the appellant has not received any benefit from the disputed premises 6 the learned counsel appearing for the appellant placed reliance on the decisions of the apex court in the case of achal misra v rama shanker singh ors 1 ram murti devi v pushpa devi ors 2 and harish tandon v addl district magistrate allahabad u p ors 3 11 2005 5 scc 531 2 2017 15 scc 230 3 1995 1 scc 537 2 3 5 7 the learned counsel appearing for the first respondent invited our attention to the findings recorded by the addl city magistrate holding that the first respondent has been in possession of the disputed premises since 1975 and is paying rent even prior to 5th july 1976 he invited our attention to the deposit of the rent made by the first respondent in the court of civil judge junior division kanpur nagar by taking recourse to sub section 1 of section 30 of the said act he submitted that as per his instructions the first respondent has been regularly depositing the rent in the said proceedings and even if some part of the rent is not deposited the first respondent shall do so 8 the learned counsel appearing for the appellant by way of rejoinder to the submissions made by the learned counsel appearing for the first respondent urged that it will be unjust to drive the appellant to file a suit for eviction 27 years after she purchased the disputed premises 9 we have carefully considered the submissions we have perused the material on record as well as the provisions of the said act sub section 1 of section 12 incorporates the concept of deemed vacancy of the building in certain cases 6 under clause b of sub section 1 of section 12 a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family sub section 2 of section 12 lays down that in case of non residential buildings where a tenant carrying on business in the building admits a person who is not a member of his family as a partner the tenant shall be deemed to have ceased to occupy the building sub section 4 of section 12 of the said act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub sections 1 or 2 of section 12 shall be deemed to be vacant 10 under clause a of sub section 1 of section 16 of the said act the district magistrate is empowered to require any landlord to let any building which has fallen vacant to any person specified in the order 11 section 14 of the said act is material which is thus 14 regularisation or occupation of existing tenants notwithstanding anything contained in this act or any other law for the time being in force any licensee within the meaning of section 2 a or a tenant in occupation of a building with the consent of the landlord 7 immediately before the commencement of the uttar pradesh urban buildings regulation of letting rent and eviction amendment act 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building under section 14 a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the u p urban buildings regulation of letting rent and eviction amendment act 1976 shall be deemed to an authorised tenant the date of commencement of the amendment act is 5th july 1976 12 the first respondent relied upon the agreement dated 15th november 1975 purportedly executed by the said dhruv narayan tripathi claiming to be the power of attorney holder and manager of the original owners the first respondent is the second party to the said agreement on whom tenancy in respect of the disputed premises was conferred the finding of fact recorded by the addl city magistrate is that the original owners never denied that the said dhruv narayan tripathi was their attorney or manager and that the original owners neither served any notice nor filed a suit for eviction in the counter 8 the first respondent has relied upon the said agreement at annexure r 4 in paragraph 5 in the rejoinder the appellant alleged that the said document was fabricated however the petitioner has not produced on record anything to show that from 1975 to 1994 the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975 thus the first respondent was inducted in possession as a tenant prior to 5th july 1976 the finding recorded by the addl city magistrate is that to the presence of the first respondent the predecessors in title of the appellant had never raised any objection right from the year 1975 therefore the addl city magistrate concluded that in absence of the evidence of predecessors in title of the appellant it is very difficult to accept that right from the year 1975 the first respondent continued to be in possession without the consent of the original owners there is nothing wrong about this inference drawn by the addl magistrate that the first respondent was inducted with the consent of the predecessors in title of the appellant we find no error in the said view taken by the addl city magistrate and confirmed by the high court 9 13 as the first respondent was a tenant in possession on 5th july 1976 with the consent of the original owners he shall be deemed to be a tenant by virtue of section 14 of the said act 14 therefore there is no reason to find fault with the order of the addl city magistrate by virtue of section 14 the first respondent gets the protection as a tenant under the said act therefore if the appellant wants the first respondent to be evicted she will have to take recourse to section 20 of the said act depending upon the circumstances she has also an option to take recourse to section 21 of the said act 15 we have carefully perused the decisions relied upon by the appellant the decision in the case of achal misra supra holds that an order notifying vacancy under section 12 of the said act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said act even the decision in the case of harish tandon supra has no bearing on the controversy in this appeal lastly the decision in the case of ram murti devi supra does not deal with the issue involved it deals with the issue of unlawful subletting none of these decisions have any application to the facts of this case 10 16 though there is no merit in the appeal it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises in the objections filed by the first respondent he has specifically taken a stand that the first respondent has filed misc case no 284 70 04 in the court of civil judge junior division at kanpur nagar under sub section 1 of section 30 of the said act the learned counsel appearing for first respondent claimed that the entire amount of rent has been deposited in the said case 17 we direct the first respondent to deposit all the arrears of rent if any up to 31st august 2021 within a period of six weeks from today and thereafter continue to regularly deposit the rent in the aforesaid proceedings he can also pay the amount to the petitioner the petitioner can always apply for withdrawal of the rent amount in accordance with sub section 3 of section 30 of the said act if eviction proceedings are filed by the petitioner considering the case of the petitioner that she is deprived of the benefit of the disputed premises right from year 1994 the concerned authority or the court as the case may be shall give priority to the disposal of the eviction proceedings 11 18 subject to what is directed above there is no merit in the appeal and the same is accordingly dismissed j ajay rastogi j abhay s oka new delhi september 20 2021 976 2010_c a no 004750 004750 2011 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4750 of 2011 geeta gupta appellant ramesh chandra dwivedi ors respondents 2025 10 09 4750 of 2011 misra v rama tandon v addl 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4750 of 2011 geeta gupta appellant v ramesh chandra dwivedi ors respondents j u d g m e n t abhay s oka j 1 by this appeal the appellant who was the writ petitioner before the high court at allahabad has taken an exception to the judgment and order dated 9th october 2009 passed by the learned single judge of allahabad high court 2 the appellant is claiming to be the owner of premises no 74 13 collectorganj kanpur nagar uttar pradesh the appellant acquired the said premises by a sale deed dated 13th march 1994 executed by power of attorney holder on behalf of the original owners shri vishnu swaroop mishra and shri gopal 2 swaroop mishra the petitioner claimed that the physical possession of the premises subject matter of the sale deed was handed over to her by her vendors which includes two gaddis two godowns and a tin shed collectively referred as the disputed premises which was earlier given by the appellant s vendor to one dhruv narayan tripathi by way of tenancy 3 an application was made by the second respondent for allotment of the disputed premises by invoking section 16 of the uttar pradesh urban buildings regulation of letting rent and eviction act 1972 for short the the said act the application was made on the premise that the disputed premises have fallen vacant in accordance with sub section 4 of section 12 of the said act on the basis of the said application in accordance with rule 8 2 of the uttar pradesh urban buildings regulation of letting rent and eviction rules 1972 an inspection report dated 20th may 1995 was submitted to the district magistrate the report recorded that the first respondent ramesh chandra dwivedi was carrying on business in the disputed premises in the name and style of m s ramesh chandra pravesh kumar it was stated in the report that first respondent informed that he was inducted as a tenant by shri 3 dhruv narayan tripathi in the disputed premises in november 1975 at monthly rent of rs 500 the district magistrate addl city magistrate vi while exercising the powers under the said act held that on the basis of the agreement dated 15th november 1975 the first respondent was inducted as a tenant by the said dhruv narayan tripathi acting as a power of attorney holder and manager of the owners he held that the original owners never objected to the action of the said dhruv narayan tripathi the addl city magistrate held that the first respondent was in continuous possession as a tenant on the basis of the said agreement dated 15th november 1975 and therefore he has become a tenant of the disputed premises hence it was held that the disputed premises were not vacant within the meaning of sub section 4 of section 12 of the said act 4 a writ petition was preferred by the petitioner against the said judgment and order of the addl city magistrate which was rejected by the impugned judgment and order dated 15th november 1975 5 the learned counsel appearing for the appellant in support of the appeal submitted that the said dhruv narayan tripathi 4 had no authority to induct the first respondent as a tenant on behalf of the predecessors in title of the petitioner she submitted that the said dhruv narayan tripathi was the tenant inducted by the predecessors in title of the appellant she submitted that on 5th july 1976 the disputed premises were vacant she submitted that the petitioner purchased the property in the year 1994 and from that day she has not received any income from the disputed premises she submitted that the writ petition before the allahabad high court was of the year 1997 which was decided on 09th october 2009 and that the present appeal is of the year 2011 thus the submission is that during the last 27 years the appellant has not received any benefit from the disputed premises 6 the learned counsel appearing for the appellant placed reliance on the decisions of the apex court in the case of achal misra v rama shanker singh ors 1 ram murti devi v pushpa devi ors 2 and harish tandon v addl district magistrate allahabad u p ors 3 11 2005 5 scc 531 2 2017 15 scc 230 3 1995 1 scc 537 2 3 5 7 the learned counsel appearing for the first respondent invited our attention to the findings recorded by the addl city magistrate holding that the first respondent has been in possession of the disputed premises since 1975 and is paying rent even prior to 5th july 1976 he invited our attention to the deposit of the rent made by the first respondent in the court of civil judge junior division kanpur nagar by taking recourse to sub section 1 of section 30 of the said act he submitted that as per his instructions the first respondent has been regularly depositing the rent in the said proceedings and even if some part of the rent is not deposited the first respondent shall do so 8 the learned counsel appearing for the appellant by way of rejoinder to the submissions made by the learned counsel appearing for the first respondent urged that it will be unjust to drive the appellant to file a suit for eviction 27 years after she purchased the disputed premises 9 we have carefully considered the submissions we have perused the material on record as well as the provisions of the said act sub section 1 of section 12 incorporates the concept of deemed vacancy of the building in certain cases 6 under clause b of sub section 1 of section 12 a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family sub section 2 of section 12 lays down that in case of non residential buildings where a tenant carrying on business in the building admits a person who is not a member of his family as a partner the tenant shall be deemed to have ceased to occupy the building sub section 4 of section 12 of the said act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub sections 1 or 2 of section 12 shall be deemed to be vacant 10 under clause a of sub section 1 of section 16 of the said act the district magistrate is empowered to require any landlord to let any building which has fallen vacant to any person specified in the order 11 section 14 of the said act is material which is thus 14 regularisation or occupation of existing tenants notwithstanding anything contained in this act or any other law for the time being in force any licensee within the meaning of section 2 a or a tenant in occupation of a building with the consent of the landlord 7 immediately before the commencement of the uttar pradesh urban buildings regulation of letting rent and eviction amendment act 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building under section 14 a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the u p urban buildings regulation of letting rent and eviction amendment act 1976 shall be deemed to an authorised tenant the date of commencement of the amendment act is 5th july 1976 12 the first respondent relied upon the agreement dated 15th november 1975 purportedly executed by the said dhruv narayan tripathi claiming to be the power of attorney holder and manager of the original owners the first respondent is the second party to the said agreement on whom tenancy in respect of the disputed premises was conferred the finding of fact recorded by the addl city magistrate is that the original owners never denied that the said dhruv narayan tripathi was their attorney or manager and that the original owners neither served any notice nor filed a suit for eviction in the counter 8 the first respondent has relied upon the said agreement at annexure r 4 in paragraph 5 in the rejoinder the appellant alleged that the said document was fabricated however the petitioner has not produced on record anything to show that from 1975 to 1994 the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975 thus the first respondent was inducted in possession as a tenant prior to 5th july 1976 the finding recorded by the addl city magistrate is that to the presence of the first respondent the predecessors in title of the appellant had never raised any objection right from the year 1975 therefore the addl city magistrate concluded that in absence of the evidence of predecessors in title of the appellant it is very difficult to accept that right from the year 1975 the first respondent continued to be in possession without the consent of the original owners there is nothing wrong about this inference drawn by the addl magistrate that the first respondent was inducted with the consent of the predecessors in title of the appellant we find no error in the said view taken by the addl city magistrate and confirmed by the high court 9 13 as the first respondent was a tenant in possession on 5th july 1976 with the consent of the original owners he shall be deemed to be a tenant by virtue of section 14 of the said act 14 therefore there is no reason to find fault with the order of the addl city magistrate by virtue of section 14 the first respondent gets the protection as a tenant under the said act therefore if the appellant wants the first respondent to be evicted she will have to take recourse to section 20 of the said act depending upon the circumstances she has also an option to take recourse to section 21 of the said act 15 we have carefully perused the decisions relied upon by the appellant the decision in the case of achal misra supra holds that an order notifying vacancy under section 12 of the said act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said act even the decision in the case of harish tandon supra has no bearing on the controversy in this appeal lastly the decision in the case of ram murti devi supra does not deal with the issue involved it deals with the issue of unlawful subletting none of these decisions have any application to the facts of this case 10 16 though there is no merit in the appeal it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises in the objections filed by the first respondent he has specifically taken a stand that the first respondent has filed misc case no 284 70 04 in the court of civil judge junior division at kanpur nagar under sub section 1 of section 30 of the said act the learned counsel appearing for first respondent claimed that the entire amount of rent has been deposited in the said case 17 we direct the first respondent to deposit all the arrears of rent if any up to 31st august 2021 within a period of six weeks from today and thereafter continue to regularly deposit the rent in the aforesaid proceedings he can also pay the amount to the petitioner the petitioner can always apply for withdrawal of the rent amount in accordance with sub section 3 of section 30 of the said act if eviction proceedings are filed by the petitioner considering the case of the petitioner that she is deprived of the benefit of the disputed premises right from year 1994 the concerned authority or the court as the case may be shall give priority to the disposal of the eviction proceedings 11 18 subject to what is directed above there is no merit in the appeal and the same is accordingly dismissed j ajay rastogi j abhay s oka new delhi september 20 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4750 of 2011 geeta gupta appellant v ramesh chandra dwivedi ors respondents j u d g m e n t abhay s oka j 1 by this appeal the appellant who was the writ petitioner before the high court at allahabad has taken an exception to the judgment and order dated 9th october 2009 passed by the learned single judge of allahabad high court 2 the appellant is claiming to be the owner of premises no 74 13 collectorganj kanpur nagar uttar pradesh the appellant acquired the said premises by a sale deed dated 13th march 1994 executed by power of attorney holder on behalf of the original owners shri vishnu swaroop mishra and shri gopal 2 swaroop mishra the petitioner claimed that the physical possession of the premises subject matter of the sale deed was handed over to her by her vendors which includes two gaddis two godowns and a tin shed collectively referred as the disputed premises which was earlier given by the appellant s vendor to one dhruv narayan tripathi by way of tenancy 3 an application was made by the second respondent for allotment of the disputed premises by invoking section 16 of the uttar pradesh urban buildings regulation of letting rent and eviction act 1972 for short the the said act the application was made on the premise that the disputed premises have fallen vacant in accordance with sub section 4 of section 12 of the said act on the basis of the said application in accordance with rule 8 2 of the uttar pradesh urban buildings regulation of letting rent and eviction rules 1972 an inspection report dated 20th may 1995 was submitted to the district magistrate the report recorded that the first respondent ramesh chandra dwivedi was carrying on business in the disputed premises in the name and style of m s ramesh chandra pravesh kumar it was stated in the report that first respondent informed that he was inducted as a tenant by shri 3 dhruv narayan tripathi in the disputed premises in november 1975 at monthly rent of rs 500 the district magistrate addl city magistrate vi while exercising the powers under the said act held that on the basis of the agreement dated 15th november 1975 the first respondent was inducted as a tenant by the said dhruv narayan tripathi acting as a power of attorney holder and manager of the owners he held that the original owners never objected to the action of the said dhruv narayan tripathi the addl city magistrate held that the first respondent was in continuous possession as a tenant on the basis of the said agreement dated 15th november 1975 and therefore he has become a tenant of the disputed premises hence it was held that the disputed premises were not vacant within the meaning of sub section 4 of section 12 of the said act 4 a writ petition was preferred by the petitioner against the said judgment and order of the addl city magistrate which was rejected by the impugned judgment and order dated 15th november 1975 5 the learned counsel appearing for the appellant in support of the appeal submitted that the said dhruv narayan tripathi 4 had no authority to induct the first respondent as a tenant on behalf of the predecessors in title of the petitioner she submitted that the said dhruv narayan tripathi was the tenant inducted by the predecessors in title of the appellant she submitted that on 5th july 1976 the disputed premises were vacant she submitted that the petitioner purchased the property in the year 1994 and from that day she has not received any income from the disputed premises she submitted that the writ petition before the allahabad high court was of the year 1997 which was decided on 09th october 2009 and that the present appeal is of the year 2011 thus the submission is that during the last 27 years the appellant has not received any benefit from the disputed premises 6 the learned counsel appearing for the appellant placed reliance on the decisions of the apex court in the case of achal misra v rama shanker singh ors 1 ram murti devi v pushpa devi ors 2 and harish tandon v addl district magistrate allahabad u p ors 3 11 2005 5 scc 531 2 2017 15 scc 230 3 1995 1 scc 537 2 3 5 7 the learned counsel appearing for the first respondent invited our attention to the findings recorded by the addl city magistrate holding that the first respondent has been in possession of the disputed premises since 1975 and is paying rent even prior to 5th july 1976 he invited our attention to the deposit of the rent made by the first respondent in the court of civil judge junior division kanpur nagar by taking recourse to sub section 1 of section 30 of the said act he submitted that as per his instructions the first respondent has been regularly depositing the rent in the said proceedings and even if some part of the rent is not deposited the first respondent shall do so 8 the learned counsel appearing for the appellant by way of rejoinder to the submissions made by the learned counsel appearing for the first respondent urged that it will be unjust to drive the appellant to file a suit for eviction 27 years after she purchased the disputed premises 9 we have carefully considered the submissions we have perused the material on record as well as the provisions of the said act sub section 1 of section 12 incorporates the concept of deemed vacancy of the building in certain cases 6 under clause b of sub section 1 of section 12 a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family sub section 2 of section 12 lays down that in case of non residential buildings where a tenant carrying on business in the building admits a person who is not a member of his family as a partner the tenant shall be deemed to have ceased to occupy the building sub section 4 of section 12 of the said act provides that any building or a part of which landlord or tenant has ceased to occupy within the meaning of sub sections 1 or 2 of section 12 shall be deemed to be vacant 10 under clause a of sub section 1 of section 16 of the said act the district magistrate is empowered to require any landlord to let any building which has fallen vacant to any person specified in the order 11 section 14 of the said act is material which is thus 14 regularisation or occupation of existing tenants notwithstanding anything contained in this act or any other law for the time being in force any licensee within the meaning of section 2 a or a tenant in occupation of a building with the consent of the landlord 7 immediately before the commencement of the uttar pradesh urban buildings regulation of letting rent and eviction amendment act 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building under section 14 a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the u p urban buildings regulation of letting rent and eviction amendment act 1976 shall be deemed to an authorised tenant the date of commencement of the amendment act is 5th july 1976 12 the first respondent relied upon the agreement dated 15th november 1975 purportedly executed by the said dhruv narayan tripathi claiming to be the power of attorney holder and manager of the original owners the first respondent is the second party to the said agreement on whom tenancy in respect of the disputed premises was conferred the finding of fact recorded by the addl city magistrate is that the original owners never denied that the said dhruv narayan tripathi was their attorney or manager and that the original owners neither served any notice nor filed a suit for eviction in the counter 8 the first respondent has relied upon the said agreement at annexure r 4 in paragraph 5 in the rejoinder the appellant alleged that the said document was fabricated however the petitioner has not produced on record anything to show that from 1975 to 1994 the original owners raised any objection to the induction of the first respondent as a tenant of the disputed premises in the year 1975 thus the first respondent was inducted in possession as a tenant prior to 5th july 1976 the finding recorded by the addl city magistrate is that to the presence of the first respondent the predecessors in title of the appellant had never raised any objection right from the year 1975 therefore the addl city magistrate concluded that in absence of the evidence of predecessors in title of the appellant it is very difficult to accept that right from the year 1975 the first respondent continued to be in possession without the consent of the original owners there is nothing wrong about this inference drawn by the addl magistrate that the first respondent was inducted with the consent of the predecessors in title of the appellant we find no error in the said view taken by the addl city magistrate and confirmed by the high court 9 13 as the first respondent was a tenant in possession on 5th july 1976 with the consent of the original owners he shall be deemed to be a tenant by virtue of section 14 of the said act 14 therefore there is no reason to find fault with the order of the addl city magistrate by virtue of section 14 the first respondent gets the protection as a tenant under the said act therefore if the appellant wants the first respondent to be evicted she will have to take recourse to section 20 of the said act depending upon the circumstances she has also an option to take recourse to section 21 of the said act 15 we have carefully perused the decisions relied upon by the appellant the decision in the case of achal misra supra holds that an order notifying vacancy under section 12 of the said act can be challenged by filing a writ petition or it can be challenged after an order of allotment is made by adopting a remedy under section 18 of the said act even the decision in the case of harish tandon supra has no bearing on the controversy in this appeal lastly the decision in the case of ram murti devi supra does not deal with the issue involved it deals with the issue of unlawful subletting none of these decisions have any application to the facts of this case 10 16 though there is no merit in the appeal it will be necessary to ensure that the first respondent regularly pays rent in respect of the disputed premises in the objections filed by the first respondent he has specifically taken a stand that the first respondent has filed misc case no 284 70 04 in the court of civil judge junior division at kanpur nagar under sub section 1 of section 30 of the said act the learned counsel appearing for first respondent claimed that the entire amount of rent has been deposited in the said case 17 we direct the first respondent to deposit all the arrears of rent if any up to 31st august 2021 within a period of six weeks from today and thereafter continue to regularly deposit the rent in the aforesaid proceedings he can also pay the amount to the petitioner the petitioner can always apply for withdrawal of the rent amount in accordance with sub section 3 of section 30 of the said act if eviction proceedings are filed by the petitioner considering the case of the petitioner that she is deprived of the benefit of the disputed premises right from year 1994 the concerned authority or the court as the case may be shall give priority to the disposal of the eviction proceedings 11 18 subject to what is directed above there is no merit in the appeal and the same is accordingly dismissed j ajay rastogi j abhay s oka new delhi september 20 2021 1141 2018_r p c no 001054 2021 2017 04 05 1141 of 2018 0066 of 2018 6179 of 2017 1 in the supreme court of india inherent jurisdiction review petition civil d no 1141 of 2018 with interlocutory application no 10066 of 2018 in civil appeal no 6179 of 2017 delhi development authority petitioner s versus gaurav kumar ors respondent s o r d e r delay condoned the present review petition has been filed to recall the judgment of this court dated 04 05 2017 passed in civil appeal no 6179 of 2017 slp c no 38303 of 2016 along with bunch of matters filed at the instance of govt of nct of delhi counsel for the review petitioner submits that the very same common judgment dated 07 07 2015 passed by the delhi high court was a subject matter of challenge by the govt of nct of delhi as well as by the present review petitioner delhi development authority in slp c no 8779 of 2016 due to some inadvertence the civil appeal preferred by govt of nct of delhi tag along with other matter s and came to be 2 dismissed although it was not connected with the bunch of matters which were decided by this court after we heard counsel for the parties the judgment dated 04 05 2017 passed in civil appeal no 6179 of 2017 slp c no 38303 of 2016 filed at the instance of govt of nct of delhi deserves to be recalled accordingly review petition is allowed the judgment dated 04 05 2017 passed in civil appeal no 6179 of 2017 slp c no 38303 of 2016 is recalled and restored to its original number and to be heard along with slp c no 8779 2016 filed by the delhi development authority j ajay rastogi j abhay s oka new delhi september 30 2021 1 in the supreme court of india inherent jurisdiction review petition civil d no 1141 of 2018 with interlocutory application no 10066 of 2018 in civil appeal no 6179 of 2017 delhi development authority petitioner s versus gaurav kumar ors respondent s o r d e r delay condoned the present review petition has been filed to recall the judgment of this court dated 04 05 2017 passed in civil appeal no 6179 of 2017 slp c no 38303 of 2016 along with bunch of matters filed at the instance of govt of nct of delhi counsel for the review petitioner submits that the very same common judgment dated 07 07 2015 passed by the delhi high court was a subject matter of challenge by the govt of nct of delhi as well as by the present review petitioner delhi development authority in slp c no 8779 of 2016 due to some inadvertence the civil appeal preferred by govt of nct of delhi tag along with other matter s and came to be 2 dismissed although it was not connected with the bunch of matters which were decided by this court after we heard counsel for the parties the judgment dated 04 05 2017 passed in civil appeal no 6179 of 2017 slp c no 38303 of 2016 filed at the instance of govt of nct of delhi deserves to be recalled accordingly review petition is allowed the judgment dated 04 05 2017 passed in civil appeal no 6179 of 2017 slp c no 38303 of 2016 is recalled and restored to its original number and to be heard along with slp c no 8779 2016 filed by the delhi development authority j ajay rastogi j abhay s oka new delhi september 30 2021 1154 2017_c a no 002336 002336 2021 tikka maheshwar chand the high court 2006 10 28 2336 of 2021 4035 of 2017 others v deputy others v manjit singh v ram others v ali another v ram another v ram reportable in the supreme court of india civil appellate jurisdiction civil appeal no 2336 of 2021 arising out of slp civil no 4035 of 2017 appellant s ripudaman singh versus tikka maheshwar chand respondent s o r d e r leave granted 1 the plaintiff is in appeal before this court challenging the judgment and decree passed by the high court on 28 10 2006 whereby appeal filed by the defendant was allowed and the suit for declaration challenging the orders passed in mutation proceedings was dismissed 2 the parties herein are the two sons of late vijendra singh the appellant filed a suit for possession in the year 1978 disputing the will dated 04 12 1958 executed in favour of the defendant the appellant claimed half share of the land as described in the plaint during the pendency of suit a decree was passed on the basis of compromise arrived at between the parties the terms of compromise read as under 1 the plaintiff shall be delivered possession of khasra no 513 1 area measuring 8 kanals 18 marlas as per tatima ex p 2 by the defendant and the plaintiff shall be exclusive owner thereof and the defendant shall continue to remain in physical possession as an owner of khasra no 513 2 area measuring 143 kanals and 16 marlas the plaintiff shall be owner of khasra no 516 1 area measuring 27 kanals 11 marlas and the defendant shall also pay to the plaintiff a sum of rs 10 000 within one month from today the plaintiff shall also be owner in respect of the land recorded in the ownership of the defendant in patwars dhaneta nohngi choru and saproh in respect of ghair mumkin land 3 in pursuance of the decree so passed the plaintiff sought a mutation of the 1 2 share of the land vesting to him which was allowed by the naib tehsildar on 10 02 1983 however an appeal against the said mutation was disposed of with a direction to naib tehsildar to decide the mutation afresh as the mutation was sanctioned without granting any opportunity of being heard to the respondent 4 the appellant thereafter filed an appeal before the divisional commissioner such appeal was dismissed on the ground that the compromise decree in the absence of registration is against the provisions of the registration act 1908 it was held as under from the perusal of the record it is revealed that the decree passed by the ld sub judge in civil suit no 45 of 1978 is a compromise decree concerning delivery of possession of khasra no 513 1 measuring 8 kanals 18 marlas and owner of kh no 516 1 measuring 27 kanals 11 marlas situated in patwars dhaneta nohang choru and saproh in respect of gair mumkin land the present appeal is in respect of other land which was not the subject matter of suit in the civil court under section 2 17 2 vi of indian registration act the compromise decree which related to the subject matter of the suit remained immune from registration the compromise decree which incorporated matters beyond the scope of the suit requires registration therefore the land under dispute which is beyond the scope of the suit or compromise decree requires registration the assistant collector iind grade nadaun vide his orders dated 24 6 89 has sanctioned the mutation without the registration of the compromise decree is against the provision of the act ibid and the ld collector has rightly accepted the appeals of the respondent tikka maheshwar chand hence these appeals are dismissed and the order of the collector dated 13 2 91 is upheld 5 the appellant subsequently filed a suit for declaration challenging such order passed by the commissioner the suit was dismissed by the learned sub judge ist class hamirpur on 20 11 2002 but the appeal preferred by the appellant was allowed by the learned district judge hamirpur in 19 08 2004 the said order was under challenge in the second appeal before the high court the high court set aside the judgment and decree passed by the first appellate court and the suit was dismissed on the ground that the land even though being subject matter of compromise was not the subject matter of the suit and therefore the decree required registration under section 17 2 vi of the registration act 1908 6 the only question in the present appeal is whether a compromise decree in respect of land which is not the subject matter of suit but is part of the settlement between the family members requires compulsory registration in terms of section 17 2 vi of the registration act 1908 the relevant provision of clause v and 3 clause vi of sub clause 2 of section 17 of the said act reads as under 17 2 nothing in clauses b and c of sub section 1 applies to xxx v any document other than the documents specified in sub section 1a not itself creating declaring assigning limiting or extinguishing any right title or interest of the value of one hundred rupees and upwards to or in immovable property but merely creating a right to obtain another document which will when executed create declare assign limit or extinguish any such right title or interest vi any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding 7 we find that the judgment and decree passed by the high court is clearly erroneous and cannot be sustained in law the parties are the sons of late vijendra singh as an heir of deceased the appellant had a right in the estate left by the deceased therefore it was not a new right being created for the first time when the parties entered into a compromise before the civil court but rather an pre existing right in the property was recognized by way of settlement in court proceedings 8 though the gair mumkin land non cultivable land was not subject matter of the suit but the compromise entered between the parties before the learned trial court leading to decree on 3 11 1981 included such non cultivable land it is to be noted that compromise decree can be passed even if the subject matter of the 4 agreement compromise of satisfaction is not the same as the subject matter of the suit in terms of the provisions of order xxiii rule 3 of the code of civil procedure 1908 order xxiii rule 3 of the code of civil procedure 1908 reads thus 3 compromise of suit where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit the court shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the parties to the suit whether or not the subject matter of the agreement compromise or satisfaction is the same as the subject matter of the suit xxx xxx 9 therefore the compromise decree entered into between the parties in respect of land which was not the subject matter of the suit is valid and is thus a legal settlement it would be relevant to notice that defendant respondent has not disputed such settlement on any admissible grounds before any forum 10 the question whether such settlement between the members of the family would require registration or not has come up for consideration before this court in a judgment reported in kale and others v deputy director of consolidation and others1 which reads as under 9 the object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various 1 1976 3 scc 119 5 members of the family today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and therefore of the entire country is the prime need of the hour a family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice that is why the term family has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country the courts have therefore leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits 10 in other words to put the binding effect and the essentials of a family settlement in a concretised form the matter may be reduced into the form of the following propositions 1 xxx xxx 4 it is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing here also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation in such a case the 6 memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17 2 of the registration act and is therefore not compulsorily registrable 5 the members who may be parties to the family arrangement must have some antecedent title claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same 6 even if bona fide disputes present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement 11 the said judgment has come up for consideration recently in a case reported as ravinder kaur grewal and others v manjit kaur and others2 it may be stated that this was not a case of compromise decree but of a family settlement which was sought to be enforced in a suit for declaration as one of the parties to the settlement wanted to resile from it such family settlement was held to be a document as per clause v of sub section 2 of section 17 of the registration act 1908 12 an aggrieved person can seek enforcement of family settlement in a suit for declaration wherein the family members have some 2 2020 9 scc 706 7 semblance of right in property or any pre existing right in the property the family members could enter into settlement during the pendency of the proceedings before the civil court as well such settlement would be binding within the members of the family if a document is sought to be enforced which is not recognized by a decree the provision of clause v of sub section 2 of section 17 of the registration act 1908 would be applicable however where the decree has been passed in respect of family property clause vi of sub section 2 of section 17 of the registration act 1908 would be applicable the principle is based on the fact that family settlement only declares the rights which are already possessed by the parties 13 in respect of a question whether the decree requires registration or not this court in bhoop singh v ram singh major and others3 held that decree or order including compromise decree creating new right title or interest in praesenti in immovable property of value of rs 100 or above is compulsory for registration it was not the case any pre existing right but right that has been created by the decree alone this court explained both the situation where a part has pre existing right and where no such right exists it was observed as under 13 in other words the court must enquire whether a document has recorded unqualified and unconditional words of present demise of right title and interest in the property and included the essential terms of the same if the document including a compromise memo extinguishes the rights of one and seeks to confer right title or interest in 3 1995 5 scc 709 8 praesenti in favour of the other relating to immovable property of the value of rs 100 and upwards the document or record or compromise memo shall be compulsorily registered xx xx xx 16 we have to view the reach of clause vi which is an exception to sub section 1 bearing all the aforesaid in mind we would think that the exception engrafted is meant to cover that decree or order of a court including a decree or order expressed to be made on a compromise which declares the pre existing right and does not by itself create new right title or interest in praesenti in immovable property of the value of rs 100 or upwards any other view would find the mischief of avoidance of registration which requires payment of stamp duty embedded in the decree or order xx xx xx 18 the legal position qua clause vi can on the basis of the aforesaid discussion be summarized as below 1 compromise decree if bona fide in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration would not require registration in a converse situation it would require registration 2 if the compromise decree were to create for the first time right title or interest in immovable property of the value of rs 100 or upwards in favour of any party to the suit the decree or order would require registration 3 if the decree were not to attract any of the clauses of sub section 1 of section 17 as was the position in the aforesaid privy council and this court s cases it is apparent that the decree would not require registration 4 if the decree were not to embody the terms of compromise as was the position in lahore case benefit from the terms of compromise cannot be derived even if a suit were to be disposed of because of the compromise in question 5 if the property dealt with by the decree be not the subject matter of the suit or proceeding clause vi of sub 9 section 2 would not operate because of the amendment of this clause by act 21 of 1929 which has its origin in the aforesaid decision of the privy council according to which the original clause would have been attracted even if it were to encompass property not litigated 19 now let us see whether on the strength of the decree passed in suit no 215 of 1973 the petitioner could sustain his case as put up in his written statement in the present suit despite the decree not having been registered according to us it cannot for two reasons 1 the decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre existing right did require registration it may also be pointed out that the first suit cannot really be said to have been decreed on the basis of compromise as the suit was decreed in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct decreeing of suit in such a situation is covered by order 12 rule 6 and not by order 23 rule 3 which deals with compromise of suit whereas the former is on the subject of judgment on admissions 2 xxx xxx 14 in k raghunandan and others v ali hussain sabir and others4 a decree was passed in respect of disputes between the two neighbours over passage it was held that such decree would require registration a statute must be construed having regard to the purpose and object thereof sub section 1 of section 17 of the act makes registration of the documents compulsory sub section 2 of section 17 of the act excludes only the applications of clauses b and c and not clause e of sub section 1 of section 17 if a right is created by a compromise decree or is extinguished it must compulsorily be registered if the compromise decree comprises immovable property which was not the subject matter of the suit or proceeding clause vi is an exception to the exception if the latter part of clause vi of sub section 2 of section 17 of the act applies the first part thereof shall not 4 2008 13 scc 102 10 apply as in this case not only there exists a dispute with regard to the title of the parties over the passage and the passage itself having not found the part of the compromise we do not find any infirmity in the impugned judgment 15 the judgments of this court in bhoop singh and k raghunandan was found to be inconsistent in an order reported in phool patti and another v ram singh dead through lrs and another5 and the matter was thus referred to a larger bench the larger bench in the judgment reported as phool patti and another v ram singh dead through lrs and another6 did not find inconsistencies between the two judgments 16 bhoop singh was a case dealing with both the situations decree between the parties where the decree holder does not have any pre existing right in the property and also the situation where decree holder has a pre existing right it was the second situation where the decree holder has a pre existing right in the property it was found that decree does not require registration in k raghunandan case the dispute was not amongst the family members but between neighbours regarding right over passage obviously none of them had any pre existing right over the immovable property in question 17 in view of enunciation of law in bhoop singh s case we find that the judgment and decree of the high court holding that the decree requires compulsory registration is erroneous in law the 5 2009 13 scc 22 6 2015 3 scc 465 11 compromise was between the two brothers consequent to death of their father and no right was being created in praesenti for the first time thus not requiring compulsory registration consequently the appeal is allowed and the suit is decreed j sanjay kishan kaul j hemant gupta new delhi july 6 2021 12 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 2336 of 2021 arising out of slp civil no 4035 of 2017 appellant s ripudaman singh versus tikka maheshwar chand respondent s o r d e r leave granted 1 the plaintiff is in appeal before this court challenging the judgment and decree passed by the high court on 28 10 2006 whereby appeal filed by the defendant was allowed and the suit for declaration challenging the orders passed in mutation proceedings was dismissed 2 the parties herein are the two sons of late vijendra singh the appellant filed a suit for possession in the year 1978 disputing the will dated 04 12 1958 executed in favour of the defendant the appellant claimed half share of the land as described in the plaint during the pendency of suit a decree was passed on the basis of compromise arrived at between the parties the terms of compromise read as under 1 the plaintiff shall be delivered possession of khasra no 513 1 area measuring 8 kanals 18 marlas as per tatima ex p 2 by the defendant and the plaintiff shall be exclusive owner thereof and the defendant shall continue to remain in physical possession as an owner of khasra no 513 2 area measuring 143 kanals and 16 marlas the plaintiff shall be owner of khasra no 516 1 area measuring 27 kanals 11 marlas and the defendant shall also pay to the plaintiff a sum of rs 10 000 within one month from today the plaintiff shall also be owner in respect of the land recorded in the ownership of the defendant in patwars dhaneta nohngi choru and saproh in respect of ghair mumkin land 3 in pursuance of the decree so passed the plaintiff sought a mutation of the 1 2 share of the land vesting to him which was allowed by the naib tehsildar on 10 02 1983 however an appeal against the said mutation was disposed of with a direction to naib tehsildar to decide the mutation afresh as the mutation was sanctioned without granting any opportunity of being heard to the respondent 4 the appellant thereafter filed an appeal before the divisional commissioner such appeal was dismissed on the ground that the compromise decree in the absence of registration is against the provisions of the registration act 1908 it was held as under from the perusal of the record it is revealed that the decree passed by the ld sub judge in civil suit no 45 of 1978 is a compromise decree concerning delivery of possession of khasra no 513 1 measuring 8 kanals 18 marlas and owner of kh no 516 1 measuring 27 kanals 11 marlas situated in patwars dhaneta nohang choru and saproh in respect of gair mumkin land the present appeal is in respect of other land which was not the subject matter of suit in the civil court under section 2 17 2 vi of indian registration act the compromise decree which related to the subject matter of the suit remained immune from registration the compromise decree which incorporated matters beyond the scope of the suit requires registration therefore the land under dispute which is beyond the scope of the suit or compromise decree requires registration the assistant collector iind grade nadaun vide his orders dated 24 6 89 has sanctioned the mutation without the registration of the compromise decree is against the provision of the act ibid and the ld collector has rightly accepted the appeals of the respondent tikka maheshwar chand hence these appeals are dismissed and the order of the collector dated 13 2 91 is upheld 5 the appellant subsequently filed a suit for declaration challenging such order passed by the commissioner the suit was dismissed by the learned sub judge ist class hamirpur on 20 11 2002 but the appeal preferred by the appellant was allowed by the learned district judge hamirpur in 19 08 2004 the said order was under challenge in the second appeal before the high court the high court set aside the judgment and decree passed by the first appellate court and the suit was dismissed on the ground that the land even though being subject matter of compromise was not the subject matter of the suit and therefore the decree required registration under section 17 2 vi of the registration act 1908 6 the only question in the present appeal is whether a compromise decree in respect of land which is not the subject matter of suit but is part of the settlement between the family members requires compulsory registration in terms of section 17 2 vi of the registration act 1908 the relevant provision of clause v and 3 clause vi of sub clause 2 of section 17 of the said act reads as under 17 2 nothing in clauses b and c of sub section 1 applies to xxx v any document other than the documents specified in sub section 1a not itself creating declaring assigning limiting or extinguishing any right title or interest of the value of one hundred rupees and upwards to or in immovable property but merely creating a right to obtain another document which will when executed create declare assign limit or extinguish any such right title or interest vi any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding 7 we find that the judgment and decree passed by the high court is clearly erroneous and cannot be sustained in law the parties are the sons of late vijendra singh as an heir of deceased the appellant had a right in the estate left by the deceased therefore it was not a new right being created for the first time when the parties entered into a compromise before the civil court but rather an pre existing right in the property was recognized by way of settlement in court proceedings 8 though the gair mumkin land non cultivable land was not subject matter of the suit but the compromise entered between the parties before the learned trial court leading to decree on 3 11 1981 included such non cultivable land it is to be noted that compromise decree can be passed even if the subject matter of the 4 agreement compromise of satisfaction is not the same as the subject matter of the suit in terms of the provisions of order xxiii rule 3 of the code of civil procedure 1908 order xxiii rule 3 of the code of civil procedure 1908 reads thus 3 compromise of suit where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit the court shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the parties to the suit whether or not the subject matter of the agreement compromise or satisfaction is the same as the subject matter of the suit xxx xxx 9 therefore the compromise decree entered into between the parties in respect of land which was not the subject matter of the suit is valid and is thus a legal settlement it would be relevant to notice that defendant respondent has not disputed such settlement on any admissible grounds before any forum 10 the question whether such settlement between the members of the family would require registration or not has come up for consideration before this court in a judgment reported in kale and others v deputy director of consolidation and others1 which reads as under 9 the object of the arrangement is to protect the family from long drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various 1 1976 3 scc 119 5 members of the family today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and therefore of the entire country is the prime need of the hour a family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice that is why the term family has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country the courts have therefore leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits 10 in other words to put the binding effect and the essentials of a family settlement in a concretised form the matter may be reduced into the form of the following propositions 1 xxx xxx 4 it is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing here also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation in such a case the 6 memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17 2 of the registration act and is therefore not compulsorily registrable 5 the members who may be parties to the family arrangement must have some antecedent title claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same 6 even if bona fide disputes present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement 11 the said judgment has come up for consideration recently in a case reported as ravinder kaur grewal and others v manjit kaur and others2 it may be stated that this was not a case of compromise decree but of a family settlement which was sought to be enforced in a suit for declaration as one of the parties to the settlement wanted to resile from it such family settlement was held to be a document as per clause v of sub section 2 of section 17 of the registration act 1908 12 an aggrieved person can seek enforcement of family settlement in a suit for declaration wherein the family members have some 2 2020 9 scc 706 7 semblance of right in property or any pre existing right in the property the family members could enter into settlement during the pendency of the proceedings before the civil court as well such settlement would be binding within the members of the family if a document is sought to be enforced which is not recognized by a decree the provision of clause v of sub section 2 of section 17 of the registration act 1908 would be applicable however where the decree has been passed in respect of family property clause vi of sub section 2 of section 17 of the registration act 1908 would be applicable the principle is based on the fact that family settlement only declares the rights which are already possessed by the parties 13 in respect of a question whether the decree requires registration or not this court in bhoop singh v ram singh major and others3 held that decree or order including compromise decree creating new right title or interest in praesenti in immovable property of value of rs 100 or above is compulsory for registration it was not the case any pre existing right but right that has been created by the decree alone this court explained both the situation where a part has pre existing right and where no such right exists it was observed as under 13 in other words the court must enquire whether a document has recorded unqualified and unconditional words of present demise of right title and interest in the property and included the essential terms of the same if the document including a compromise memo extinguishes the rights of one and seeks to confer right title or interest in 3 1995 5 scc 709 8 praesenti in favour of the other relating to immovable property of the value of rs 100 and upwards the document or record or compromise memo shall be compulsorily registered xx xx xx 16 we have to view the reach of clause vi which is an exception to sub section 1 bearing all the aforesaid in mind we would think that the exception engrafted is meant to cover that decree or order of a court including a decree or order expressed to be made on a compromise which declares the pre existing right and does not by itself create new right title or interest in praesenti in immovable property of the value of rs 100 or upwards any other view would find the mischief of avoidance of registration which requires payment of stamp duty embedded in the decree or order xx xx xx 18 the legal position qua clause vi can on the basis of the aforesaid discussion be summarized as below 1 compromise decree if bona fide in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration would not require registration in a converse situation it would require registration 2 if the compromise decree were to create for the first time right title or interest in immovable property of the value of rs 100 or upwards in favour of any party to the suit the decree or order would require registration 3 if the decree were not to attract any of the clauses of sub section 1 of section 17 as was the position in the aforesaid privy council and this court s cases it is apparent that the decree would not require registration 4 if the decree were not to embody the terms of compromise as was the position in lahore case benefit from the terms of compromise cannot be derived even if a suit were to be disposed of because of the compromise in question 5 if the property dealt with by the decree be not the subject matter of the suit or proceeding clause vi of sub 9 section 2 would not operate because of the amendment of this clause by act 21 of 1929 which has its origin in the aforesaid decision of the privy council according to which the original clause would have been attracted even if it were to encompass property not litigated 19 now let us see whether on the strength of the decree passed in suit no 215 of 1973 the petitioner could sustain his case as put up in his written statement in the present suit despite the decree not having been registered according to us it cannot for two reasons 1 the decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre existing right did require registration it may also be pointed out that the first suit cannot really be said to have been decreed on the basis of compromise as the suit was decreed in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct decreeing of suit in such a situation is covered by order 12 rule 6 and not by order 23 rule 3 which deals with compromise of suit whereas the former is on the subject of judgment on admissions 2 xxx xxx 14 in k raghunandan and others v ali hussain sabir and others4 a decree was passed in respect of disputes between the two neighbours over passage it was held that such decree would require registration a statute must be construed having regard to the purpose and object thereof sub section 1 of section 17 of the act makes registration of the documents compulsory sub section 2 of section 17 of the act excludes only the applications of clauses b and c and not clause e of sub section 1 of section 17 if a right is created by a compromise decree or is extinguished it must compulsorily be registered if the compromise decree comprises immovable property which was not the subject matter of the suit or proceeding clause vi is an exception to the exception if the latter part of clause vi of sub section 2 of section 17 of the act applies the first part thereof shall not 4 2008 13 scc 102 10 apply as in this case not only there exists a dispute with regard to the title of the parties over the passage and the passage itself having not found the part of the compromise we do not find any infirmity in the impugned judgment 15 the judgments of this court in bhoop singh and k raghunandan was found to be inconsistent in an order reported in phool patti and another v ram singh dead through lrs and another5 and the matter was thus referred to a larger bench the larger bench in the judgment reported as phool patti and another v ram singh dead through lrs and another6 did not find inconsistencies between the two judgments 16 bhoop singh was a case dealing with both the situations decree between the parties where the decree holder does not have any pre existing right in the property and also the situation where decree holder has a pre existing right it was the second situation where the decree holder has a pre existing right in the property it was found that decree does not require registration in k raghunandan case the dispute was not amongst the family members but between neighbours regarding right over passage obviously none of them had any pre existing right over the immovable property in question 17 in view of enunciation of law in bhoop singh s case we find that the judgment and decree of the high court holding that the decree requires compulsory registration is erroneous in law the 5 2009 13 scc 22 6 2015 3 scc 465 11 compromise was between the two brothers consequent to death of their father and no right was being created in praesenti for the first time thus not requiring compulsory registration consequently the appeal is allowed and the suit is decreed j sanjay kishan kaul j hemant gupta new delhi july 6 2021 12 1181 2021_c a no 000693 000693 2021 the appellant the respondent contractor for the construction of diversion 2009 04 14 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 693 of 2021 arising out of slp c no 2544 2021 punatsangchhu 1 hydroelectric project authority bhutan appellant versus larsen toubro ltd respondent o r d e r leave granted 1 on 14 04 2009 a contract agreement was executed between the appellant and the respondent contractor for the construction of diversion tunnel dam intake and desilting arrangement including hydro mechanical works of the punatsangchhu i hydro electric project located in wangdue phodrang district in bhutan the contract provided for resolution of disputes through arbitration the relevant terms of the contract are as under clause 5 i b the law to which the contract is to be subject and according to which the contract is to be construed shall be the law for the time being in force in bhutan and within the jurisdiction of thimphu courts clause 67 ii except where the decision has become final binding and conclusive in terms of sub para i above disputes or differences shall be referred for arbitration through to an arbitral tribunal of three arbitrators appointed jointly by the phpa and the contractor where the mandate of an arbitrator terminates a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced in the absence of an arbitration act in bhutan the arbitral tribunal shall follow be guided by the basic principles and procedures as contained in the indian arbitration and conciliation act 1996 the parties shall be free to agree on a procedure for appointing the arbitrators failing any agreement for appointment of arbitrators each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator 2 clause 67 iv if either of the parties fail to appoint its arbitrators in pursuance of sub clause ii above within 30 days after the receipt of the notice of the appointment of its arbitrators or the two appointed arbitrators fail to agree on third arbitrator within thirty days from the date of their appointment then the appointment shall be made upon request of a party by the chief justice delhi high court india thimphu high court bhutan or any person or institutions designated by him clause 67 vii a all arbitration shall be held at new delhi india thimphu bhutan 2 on 25 02 2013 the kingdom of bhutan enacted the alternative dispute resolution act 2013 the bhutan act to provide for settlement of disputes through arbitration the act came into force w e f 14 03 2013 3 disputes arose between the parties with respect to certain claims made by the respondent contractor on 28 07 2020 the respondent contractor sent a notice of arbitration to the appellant authority under clause 67 ii of the contract and nominated a retired judge of this court as its nominee arbitrator 4 in response to the notice dated 28 07 2020 the appellant replied vide letter dated 04 08 2020 stating that it was agreeable for settlement of disputes through arbitration however as per clause 67 ii of the contract the arbitration would be governed by the bhutan act 2013 and the place of arbitration shall be at thimphu bhutan as provided by clause 67 vii a 5 in october 2020 the respondent contractor filed an application u s 11 6 of the arbitration conciliation act 1996 before the delhi high court for appointment of an arbitrator on behalf of the appellant authority 6 the delhi high court vide order dated 11 12 2020 held that clause 67 ii of the agreement did not indicate that the applicability of the 1996 act 3 would cease on the enactment of the bhutan act the enactment of the bhutan act 2013 would not result in the 1996 act becoming inapplicable the arbitration would be governed by the 1996 act since the hydro electric authority had failed to appoint its arbitrator the court exercised its jurisdiction u s 11 and made the appointment it was further directed that the two arbitrators would proceed to appoint the presiding arbitrator and the arbitral proceedings would be governed by the provisions of the 1996 act 7 aggrieved by the order dated 11 12 2020 the hydro electric authority filed the present special leave petition we have heard mr tushar mehta learned solicitor general of india and mr ranjeet kumar senior advocate on behalf of the appellant authority and mr gourab banerji senior advocate on behalf of the respondent contractor on 16 02 2021 the matter was taken up for admission hearing we were informed by the senior counsel for the parties that in the meanwhile the arbitral tribunal had been constituted as the two arbitrators had appointed justice retd r c lahoti former chief justice of india as the presiding arbitrator the learned solicitor general appearing on behalf of the authority fairly submitted that the appellant herein did not have an issue with respect to the panel of arbitrators appointed for adjudication of the disputes their grievance was limited to the applicability of the indian arbitration conciliation act 1996 and the seat of arbitration at new delhi 8 the matter was then taken up on 22 02 2021 for further hearing mr gourab banerji learned senior advocate for the respondent contractor 4 submitted that his clients were agreeable to the arbitration being conducted in accordance with the alternative dispute resolution act 2013 of bhutan with the seat of arbitration at thimphu 9 in view of the consensus arrived between the parties the order of the high court stands modified to the extent that all disputes arising out of the agreement dated 14 04 2009 shall be conducted in accordance with the alternative dispute resolution act of bhutan 2013 with the seat of arbitration at thimphu the tribunal will however be at liberty to conduct some of the hearings in consultation with the parties at such venues as may be convenient the civil appeal is disposed of with no order as to costs pending applications if any shall stand disposed of j indu malhotra j ajay rastogi new delhi february 22 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 693 of 2021 arising out of slp c no 2544 2021 punatsangchhu 1 hydroelectric project authority bhutan appellant versus larsen toubro ltd respondent o r d e r leave granted 1 on 14 04 2009 a contract agreement was executed between the appellant and the respondent contractor for the construction of diversion tunnel dam intake and desilting arrangement including hydro mechanical works of the punatsangchhu i hydro electric project located in wangdue phodrang district in bhutan the contract provided for resolution of disputes through arbitration the relevant terms of the contract are as under clause 5 i b the law to which the contract is to be subject and according to which the contract is to be construed shall be the law for the time being in force in bhutan and within the jurisdiction of thimphu courts clause 67 ii except where the decision has become final binding and conclusive in terms of sub para i above disputes or differences shall be referred for arbitration through to an arbitral tribunal of three arbitrators appointed jointly by the phpa and the contractor where the mandate of an arbitrator terminates a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced in the absence of an arbitration act in bhutan the arbitral tribunal shall follow be guided by the basic principles and procedures as contained in the indian arbitration and conciliation act 1996 the parties shall be free to agree on a procedure for appointing the arbitrators failing any agreement for appointment of arbitrators each party shall appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator 2 clause 67 iv if either of the parties fail to appoint its arbitrators in pursuance of sub clause ii above within 30 days after the receipt of the notice of the appointment of its arbitrators or the two appointed arbitrators fail to agree on third arbitrator within thirty days from the date of their appointment then the appointment shall be made upon request of a party by the chief justice delhi high court india thimphu high court bhutan or any person or institutions designated by him clause 67 vii a all arbitration shall be held at new delhi india thimphu bhutan 2 on 25 02 2013 the kingdom of bhutan enacted the alternative dispute resolution act 2013 the bhutan act to provide for settlement of disputes through arbitration the act came into force w e f 14 03 2013 3 disputes arose between the parties with respect to certain claims made by the respondent contractor on 28 07 2020 the respondent contractor sent a notice of arbitration to the appellant authority under clause 67 ii of the contract and nominated a retired judge of this court as its nominee arbitrator 4 in response to the notice dated 28 07 2020 the appellant replied vide letter dated 04 08 2020 stating that it was agreeable for settlement of disputes through arbitration however as per clause 67 ii of the contract the arbitration would be governed by the bhutan act 2013 and the place of arbitration shall be at thimphu bhutan as provided by clause 67 vii a 5 in october 2020 the respondent contractor filed an application u s 11 6 of the arbitration conciliation act 1996 before the delhi high court for appointment of an arbitrator on behalf of the appellant authority 6 the delhi high court vide order dated 11 12 2020 held that clause 67 ii of the agreement did not indicate that the applicability of the 1996 act 3 would cease on the enactment of the bhutan act the enactment of the bhutan act 2013 would not result in the 1996 act becoming inapplicable the arbitration would be governed by the 1996 act since the hydro electric authority had failed to appoint its arbitrator the court exercised its jurisdiction u s 11 and made the appointment it was further directed that the two arbitrators would proceed to appoint the presiding arbitrator and the arbitral proceedings would be governed by the provisions of the 1996 act 7 aggrieved by the order dated 11 12 2020 the hydro electric authority filed the present special leave petition we have heard mr tushar mehta learned solicitor general of india and mr ranjeet kumar senior advocate on behalf of the appellant authority and mr gourab banerji senior advocate on behalf of the respondent contractor on 16 02 2021 the matter was taken up for admission hearing we were informed by the senior counsel for the parties that in the meanwhile the arbitral tribunal had been constituted as the two arbitrators had appointed justice retd r c lahoti former chief justice of india as the presiding arbitrator the learned solicitor general appearing on behalf of the authority fairly submitted that the appellant herein did not have an issue with respect to the panel of arbitrators appointed for adjudication of the disputes their grievance was limited to the applicability of the indian arbitration conciliation act 1996 and the seat of arbitration at new delhi 8 the matter was then taken up on 22 02 2021 for further hearing mr gourab banerji learned senior advocate for the respondent contractor 4 submitted that his clients were agreeable to the arbitration being conducted in accordance with the alternative dispute resolution act 2013 of bhutan with the seat of arbitration at thimphu 9 in view of the consensus arrived between the parties the order of the high court stands modified to the extent that all disputes arising out of the agreement dated 14 04 2009 shall be conducted in accordance with the alternative dispute resolution act of bhutan 2013 with the seat of arbitration at thimphu the tribunal will however be at liberty to conduct some of the hearings in consultation with the parties at such venues as may be convenient the civil appeal is disposed of with no order as to costs pending applications if any shall stand disposed of j indu malhotra j ajay rastogi new delhi february 22 2021 1203 2016_c a no 000805 000805 2021 him his father he shifted to navalur and started working in 2002 11 16 non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 805 of 2021 slp c no 2331 of 2016 mallanaguoda and ors appellant s versus ninganagouda and ors respondent s j u d g m e n t l nageswara rao j 1 ranganagouda patil the deceased husband of appellant no 2 and father of appellant no 1 and 3 filed a suit for partition and separate possession the plaintiff and defendant nos 1 to 6 are brothers defendant nos 7 and 8 are their sisters and defendant no 9 is their mother the father of the plaintiff veeranagouda channappagouda patil died intestate in the year 1 pa ge 1981 according to the plaintiff due to a quarrel between him and his father he shifted to navalur and started working in mysore kirloskar at sattur 15 years prior to the filing of the suit 2 the defendants refuted the claim of the plaintiff and contended that there was a partition during the life time of their ancestor i e veeranagouda the defendants pleaded that the plaintiff was compensated monetarily in lieu of his share in the joint family properties and he started residing separately 3 by a judgment dated 16 11 2002 the third additional civil judge dharwad partly decreed the suit the plaintiff was granted 1 8th share of the entire suit properties except block no 163 a separate inquiry for mesne profits was directed to be conducted during final partition in respect of landed properties and the tehsildar of the concerned district was directed to effect partition in so far as house property is concerned a court commissioner was directed to be appointed 4 the appellants filed final decree petition no 11 of 2003 under order 20 rule 18 read with section 151 cpc pursuant to an application filed under order 26 rule 9 cpc a commissioner was appointed for partitioning the suit 2 pa ge properties the commissioner submitted his report to which the defendants filed their objections the objections of the defendants to the report of the commissioner were rejected by the trial court the final decree petition was allowed in part on 28 11 2012 the plaintiff was granted 1 8th share in suit schedule a properties in suit block no 5 harobelawadi village along with mesne profits of rs 4 89 350 the defendants filed an appeal against the judgment and decree dated 28 11 2012 the second additional district judge by a judgment dated 07 08 2015 upheld the judgment and decree passed in final decree proceedings except in respect of schedule d property dissatisfied with the judgment of the first appellate court the defendants filed a regular second appeal before the high court at the admission stage the high court set aside the judgment of the trial court as well as final decree proceedings and remanded the matter back to the trial court to reconsider allotment of shares to each one of the parties in block no 5 aggrieved by the said judgment of the high court the legal representatives of the plaintiff are before this court 5 the contention of the appellant is that the high court committed a grave error in interfering with the well 3 pa ge considered judgment of the first appellate court mr basava prabhu patil learned senior counsel for the appellants submitted that the high court exceeded its jurisdiction under section 100 cpc in setting aside the judgment of the first appellate court he further submitted that the first appellate court is the final court on facts and the high court ought not to have interfered with the judgment he also argued that the high court reversed the judgment of the first appellate court on the basis of facts contrary to the evidence on record 6 mr s n bhat learned counsel appearing for the respondents defendants argued that the high court has righty held that the land in block no 5 has non agricultural potentiality and allotment of the entire block no 5 in favour of the appellants would cause serious prejudice to the respondents he emphasized that the land allotted to the appellants in block no 5 is situated adjacent to a busy road which is not in dispute he submitted that every judgment of the high court need not be interfered with by this court if justice has been done to the parties partition of properties should not be lop sided benefitting only one party was the 4 pa ge assertion made by mr bhat to persuade this court not to interfere with the judgment of the high court 7 preliminary decree was passed in favour of the plaintiff on 16 11 2002 and final decree petition was disposed of by the trial court on 28 11 2012 as the main dispute relates to the allotment of 8 acres 13 guntas of land in block no 5 it is necessary to examine the findings recorded by the courts below in respect of the said property schedule a has seven properties totaling 69 acres 16 guntas plaintiff was allotted 8 acres 27 guntas being 1 8th share of 69 acres 16 guntas the partition documents prepared by the commissioner appointed by the court shows that the plaintiff was given 8 acres 13 guntas in block no 5 as the plaintiff was entitled to 8 acres 24 guntas and he was given only 8 acres 13 guntas the commissioner held that defendants have to pay rs 4853 33 for the remaining 11 guntas the report of the commissioner was accepted by the trial court and the objections raised by the defendants were rejected 8 during the pendency of regular appeal filed by the defendants respondents an application was moved under order 41 rule 27 cpc seeking permission to produce the village map to show that the land situated in block no 5 5 pa ge which was allotted to the plaintiffs is situated adjacent to dharwad saudatti state highway and is very near to harobelawadi village whereas the rest of the lands are situated far away from the village the application filed by the respondents under order 41 rule 27 was dismissed by the appellate court on the ground that there was no satisfactory explanation for not producing the document in the trial court the document was obtained by the respondents on 28 08 2012 prior to the disposal of the final decree proceedings but was not produced before the trial court while upholding the judgment of the trial court in the final decree petition the appellate court approved the report of the court commissioner who visited the landed property shown in schedule a and verified the quality and fertility of the land and found them to be similar the court commissioner considered the convenience of the parties to cultivate the land while allotting block no 5 in favour of the plaintiff the first appellate court on reexamining the matter was also of the opinion that the convenience of the parties to cultivate the land is of prime importance while partitioning landed properties the first appellate court was of the opinion that if the land in block no 5 has to be partitioned 6 pa ge equally to all the parties that would cause inconvenience to them for conducting agricultural operation the first appellate court discussed the evidence and held that the defendants did not dispute the similarity of fertility of the land the high court rejected the submission on behalf of the defendants regarding the non potentiality of block no 5 on the ground that the said question was never raised by them in the trial court no ground to that effect was also taken in the first appeal the first appellate court referred to the cross examination of the court commissioner by the defendants and found that no suggestion regarding the non potentiality was put to the court commissioner on the basis of the above findings the first appellate court upheld the final decree proceedings in respect of allotment of 8 acres 13 guntas of land in block no 5 in favour of the plaintiff 9 the high court reversed the conclusion of the first appellate court relating to non agricultural potentiality of the land without giving any reasons the high court held that 8 acres 13 guntas have to be conveniently divided amongst all sharers so that each one of them will get a portion of the land in block no 5 which has non agricultural potentiality only on that ground the high court set aside the final decree 7 pa ge proceedings and remitted the matter back for fresh consideration 10 the first appellate court is the final court on facts it has been repeatedly held by this court that the judgment of the first appellate court should not be interfered with by the high court in exercise of its jurisdiction under section 100 cpc unless there is a substantial question of law the high court committed an error in setting aside the judgment of the first appellate court and finding fault with the final decree by taking a different view on factual findings recorded by the first appellate court that apart the high court did not give any reason to substantiate the finding that the land in block no 5 has non agricultural potentiality especially when the first appellate court refused to accept the said contention by rejecting the application filed under order 41 rule 27 by the respondents in the normal course we would have set aside the judgment of the high court and remanded the matter back for fresh consideration however taking into account the fact that the preliminary decree was passed way back in 2002 and the appellants have not been able to enjoy the fruits of the decree we have examined the correctness of the judgment of the first appellate court 8 pa ge 11 the final decree passed by the trial court to the extent affirmed by the first appellate court is upheld the judgment of the high court is set aside the appeal is allowed accordingly j l nageswara rao j s ravindra bhat new delhi march 12 2021 9 pa ge non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 805 of 2021 slp c no 2331 of 2016 mallanaguoda and ors appellant s versus ninganagouda and ors respondent s j u d g m e n t l nageswara rao j 1 ranganagouda patil the deceased husband of appellant no 2 and father of appellant no 1 and 3 filed a suit for partition and separate possession the plaintiff and defendant nos 1 to 6 are brothers defendant nos 7 and 8 are their sisters and defendant no 9 is their mother the father of the plaintiff veeranagouda channappagouda patil died intestate in the year 1 pa ge 1981 according to the plaintiff due to a quarrel between him and his father he shifted to navalur and started working in mysore kirloskar at sattur 15 years prior to the filing of the suit 2 the defendants refuted the claim of the plaintiff and contended that there was a partition during the life time of their ancestor i e veeranagouda the defendants pleaded that the plaintiff was compensated monetarily in lieu of his share in the joint family properties and he started residing separately 3 by a judgment dated 16 11 2002 the third additional civil judge dharwad partly decreed the suit the plaintiff was granted 1 8th share of the entire suit properties except block no 163 a separate inquiry for mesne profits was directed to be conducted during final partition in respect of landed properties and the tehsildar of the concerned district was directed to effect partition in so far as house property is concerned a court commissioner was directed to be appointed 4 the appellants filed final decree petition no 11 of 2003 under order 20 rule 18 read with section 151 cpc pursuant to an application filed under order 26 rule 9 cpc a commissioner was appointed for partitioning the suit 2 pa ge properties the commissioner submitted his report to which the defendants filed their objections the objections of the defendants to the report of the commissioner were rejected by the trial court the final decree petition was allowed in part on 28 11 2012 the plaintiff was granted 1 8th share in suit schedule a properties in suit block no 5 harobelawadi village along with mesne profits of rs 4 89 350 the defendants filed an appeal against the judgment and decree dated 28 11 2012 the second additional district judge by a judgment dated 07 08 2015 upheld the judgment and decree passed in final decree proceedings except in respect of schedule d property dissatisfied with the judgment of the first appellate court the defendants filed a regular second appeal before the high court at the admission stage the high court set aside the judgment of the trial court as well as final decree proceedings and remanded the matter back to the trial court to reconsider allotment of shares to each one of the parties in block no 5 aggrieved by the said judgment of the high court the legal representatives of the plaintiff are before this court 5 the contention of the appellant is that the high court committed a grave error in interfering with the well 3 pa ge considered judgment of the first appellate court mr basava prabhu patil learned senior counsel for the appellants submitted that the high court exceeded its jurisdiction under section 100 cpc in setting aside the judgment of the first appellate court he further submitted that the first appellate court is the final court on facts and the high court ought not to have interfered with the judgment he also argued that the high court reversed the judgment of the first appellate court on the basis of facts contrary to the evidence on record 6 mr s n bhat learned counsel appearing for the respondents defendants argued that the high court has righty held that the land in block no 5 has non agricultural potentiality and allotment of the entire block no 5 in favour of the appellants would cause serious prejudice to the respondents he emphasized that the land allotted to the appellants in block no 5 is situated adjacent to a busy road which is not in dispute he submitted that every judgment of the high court need not be interfered with by this court if justice has been done to the parties partition of properties should not be lop sided benefitting only one party was the 4 pa ge assertion made by mr bhat to persuade this court not to interfere with the judgment of the high court 7 preliminary decree was passed in favour of the plaintiff on 16 11 2002 and final decree petition was disposed of by the trial court on 28 11 2012 as the main dispute relates to the allotment of 8 acres 13 guntas of land in block no 5 it is necessary to examine the findings recorded by the courts below in respect of the said property schedule a has seven properties totaling 69 acres 16 guntas plaintiff was allotted 8 acres 27 guntas being 1 8th share of 69 acres 16 guntas the partition documents prepared by the commissioner appointed by the court shows that the plaintiff was given 8 acres 13 guntas in block no 5 as the plaintiff was entitled to 8 acres 24 guntas and he was given only 8 acres 13 guntas the commissioner held that defendants have to pay rs 4853 33 for the remaining 11 guntas the report of the commissioner was accepted by the trial court and the objections raised by the defendants were rejected 8 during the pendency of regular appeal filed by the defendants respondents an application was moved under order 41 rule 27 cpc seeking permission to produce the village map to show that the land situated in block no 5 5 pa ge which was allotted to the plaintiffs is situated adjacent to dharwad saudatti state highway and is very near to harobelawadi village whereas the rest of the lands are situated far away from the village the application filed by the respondents under order 41 rule 27 was dismissed by the appellate court on the ground that there was no satisfactory explanation for not producing the document in the trial court the document was obtained by the respondents on 28 08 2012 prior to the disposal of the final decree proceedings but was not produced before the trial court while upholding the judgment of the trial court in the final decree petition the appellate court approved the report of the court commissioner who visited the landed property shown in schedule a and verified the quality and fertility of the land and found them to be similar the court commissioner considered the convenience of the parties to cultivate the land while allotting block no 5 in favour of the plaintiff the first appellate court on reexamining the matter was also of the opinion that the convenience of the parties to cultivate the land is of prime importance while partitioning landed properties the first appellate court was of the opinion that if the land in block no 5 has to be partitioned 6 pa ge equally to all the parties that would cause inconvenience to them for conducting agricultural operation the first appellate court discussed the evidence and held that the defendants did not dispute the similarity of fertility of the land the high court rejected the submission on behalf of the defendants regarding the non potentiality of block no 5 on the ground that the said question was never raised by them in the trial court no ground to that effect was also taken in the first appeal the first appellate court referred to the cross examination of the court commissioner by the defendants and found that no suggestion regarding the non potentiality was put to the court commissioner on the basis of the above findings the first appellate court upheld the final decree proceedings in respect of allotment of 8 acres 13 guntas of land in block no 5 in favour of the plaintiff 9 the high court reversed the conclusion of the first appellate court relating to non agricultural potentiality of the land without giving any reasons the high court held that 8 acres 13 guntas have to be conveniently divided amongst all sharers so that each one of them will get a portion of the land in block no 5 which has non agricultural potentiality only on that ground the high court set aside the final decree 7 pa ge proceedings and remitted the matter back for fresh consideration 10 the first appellate court is the final court on facts it has been repeatedly held by this court that the judgment of the first appellate court should not be interfered with by the high court in exercise of its jurisdiction under section 100 cpc unless there is a substantial question of law the high court committed an error in setting aside the judgment of the first appellate court and finding fault with the final decree by taking a different view on factual findings recorded by the first appellate court that apart the high court did not give any reason to substantiate the finding that the land in block no 5 has non agricultural potentiality especially when the first appellate court refused to accept the said contention by rejecting the application filed under order 41 rule 27 by the respondents in the normal course we would have set aside the judgment of the high court and remanded the matter back for fresh consideration however taking into account the fact that the preliminary decree was passed way back in 2002 and the appellants have not been able to enjoy the fruits of the decree we have examined the correctness of the judgment of the first appellate court 8 pa ge 11 the final decree passed by the trial court to the extent affirmed by the first appellate court is upheld the judgment of the high court is set aside the appeal is allowed accordingly j l nageswara rao j s ravindra bhat new delhi march 12 2021 9 pa ge 1232 2021_crl a no 001415 001415 2021 3 read with section 181 1415 of 2021 non reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no s 1415 of 2021 arising out of slp crl no s 931 of 2021 sagar lolienkar appellant s versus the state of goa anr respondent s j u d g m e n t rastogi j 1 leave granted 2 heard mr pallav mongia learned counsel for the appellant and ms ruchira gupta learned counsel for the respondents 3 the appellant has assailed the judgment and order dated 7th december 2020 upholding his conviction for offences under sections 279 304 a of indian penal code ipc and under section 3 read with section 181 of the motor vehicles act 1988 mv act and sentencing him with simple imprisonment of two months and 1 fine of rs 1 000 for the offence under section 279 ipc simple imprisonment for two years and fine of rs 10 000 for the offence under section 304 a ipc and to pay fine of rs 500 or in default to undergo simple imprisonment of 10 days for the offence under section 3 read with section 181 of the mv act indisputedly the appellant has undergone more than 7 months of substantive sentence 4 the case of the prosecution is that the appellant on 13th february 2013 at 1745 hrs while proceeding from tilamol side to zambaulim which is a public way drove his wagon r bearing registration no ga 09 a 6921 in a rash and negligent manner and committed a culpable homicide not amounting to murder by causing the death of manohar shetkar it was also the case of prosecution that the accused was driving the offending vehicle rashly and negligently without holding an effective driving licence issued by the competent authority and therefore committed an offence under sections 279 304 ii ipc and sections 3 181 and 185 of the mv act 5 the prosecution in all examined seven witnesses including the investigating officer thereafter the statement of the appellant was recorded under section 313 of code of criminal procedure 2 despite the opportunity the accused neither examined himself nor led any evidence in support of his defence 6 the learned trial judge by its judgment and order dated 30th september 2014 held him guilty and convicted and sentenced him for the afore stated offences the appeal preferred by the appellant came to be dismissed by the high court of bombay at goa by judgment impugned dated 7th december 2020 7 learned counsel for the appellant has tried to persuade this court that the evidence on record does not justify any conviction or sentencing and further submits that the ocular evidence is not at all reliable and the documentary evidence to a great extent supports the defence raised by the appellant 8 learned counsel further submits that there is some unreliable evidence suggesting that the offending vehicle was driven at high speed but such evidence is not at all sufficient to establish either rashness or negligence which are essential ingredients to have a conviction under sections 279 or 304 a of ipc and based on such vague testimony the conviction as recorded is quite unsustainable 3 9 learned counsel further submits that as a matter of record the appellant was holding a learner s licence to drive the motor vehicle on the alleged date of incident dated 13th february 2013 and was accompanied by his wife pw 5 who was sitting beside him and was the holder of a permanent licence to drive the motor vehicle and submits that the evidence was therefore required to be accepted in its totality learned counsel submits that wife of the appellant has deposed that the scooter was overtaking a parked truck and collided head on with the wagon r driven by the appellant but such evidence was unduly rejected by the learned sessions court and further submits that the appellant only has to probabalise his defence and there is no requirement of establishing such defence beyond a reasonable doubt in the given circumstances the conviction which has been upheld by the high court in the impugned judgment is not sustainable and deserves to be interfered by this court 10 per contra learned counsel for the respondent state has supported the order of conviction passed by the high court however the learned counsel did not seriously dispute the submissions of the learned counsel for the appellant relating to the reduction of sentence 4 11 under the directions of this court by an order dated 5th april 2021 the widow of the deceased was impleaded as respondent no 2 to whom notice has been duly served but no one has put in appearance despite service further in compliance of order of this court the compensation amount of rs 3 lakhs has been deposited by the appellant in the registry of this court 12 after going through the judgment and order passed by the high court as well as the courts below we are of the considered opinion that the well reasoned order of conviction passed by the high court for the offences under sections 279 and 304 a ipc needs no interference of this court 13 however it has come on record that the appellant has been appointed as a peon on temporary basis in the directorate of women child development goa under the scheme for providing employment in government to the children of freedom fighters by an order dated 4th may 2017 and has been blessed with the girl child on 19th february 2018 14 in the instant case the appellant has been found to be guilty of offences punishable under sections 279 and 304a ipc for driving rashly and negligently on a public street and his act 5 unfortunately resulted in the loss of the precious human life but it is pertinent to note that there was no allegation against the appellant that at the time of accident he was under the influence of liquor or any other substance impairing his driving skills it was a rash and negligent act simplicitor and not a case of driving in an inebriated condition which is undoubtedly despicable aggravated offence warranting stricter and harsher punishment 15 having regard to all these factors and bearing in mind the fact that the widow of the victim has not come forward despite notice being served and the compensation of rs 3 lakhs has been deposited by the appellant we are of the view that a lenient view can be taken in the matter and the sentence of imprisonment can be reduced 16 accordingly the conviction of the appellant under sections 279 and 304a ipc is maintained however the substantive sentence of imprisonment is reduced to the period already undergone imposition of fine is also affirmed besides the fine an amount of rs 3 lakhs which has been deposited by the appellant by way of compensation in the registry of this court be transferred to the motor accident claims tribunal south goa margao in claim petition no 84 2013 which shall be released by 6 the tribunal to the widow of the deceased smt reshma manohar shetkar 17 the appeal is disposed of accordingly the bail bonds of the appellant if any stand discharged 18 pending application s if any stand disposed of j ajay rastogi j abhay s oka new delhi november 18 2021 7 non reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no s 1415 of 2021 arising out of slp crl no s 931 of 2021 sagar lolienkar appellant s versus the state of goa anr respondent s j u d g m e n t rastogi j 1 leave granted 2 heard mr pallav mongia learned counsel for the appellant and ms ruchira gupta learned counsel for the respondents 3 the appellant has assailed the judgment and order dated 7th december 2020 upholding his conviction for offences under sections 279 304 a of indian penal code ipc and under section 3 read with section 181 of the motor vehicles act 1988 mv act and sentencing him with simple imprisonment of two months and 1 fine of rs 1 000 for the offence under section 279 ipc simple imprisonment for two years and fine of rs 10 000 for the offence under section 304 a ipc and to pay fine of rs 500 or in default to undergo simple imprisonment of 10 days for the offence under section 3 read with section 181 of the mv act indisputedly the appellant has undergone more than 7 months of substantive sentence 4 the case of the prosecution is that the appellant on 13th february 2013 at 1745 hrs while proceeding from tilamol side to zambaulim which is a public way drove his wagon r bearing registration no ga 09 a 6921 in a rash and negligent manner and committed a culpable homicide not amounting to murder by causing the death of manohar shetkar it was also the case of prosecution that the accused was driving the offending vehicle rashly and negligently without holding an effective driving licence issued by the competent authority and therefore committed an offence under sections 279 304 ii ipc and sections 3 181 and 185 of the mv act 5 the prosecution in all examined seven witnesses including the investigating officer thereafter the statement of the appellant was recorded under section 313 of code of criminal procedure 2 despite the opportunity the accused neither examined himself nor led any evidence in support of his defence 6 the learned trial judge by its judgment and order dated 30th september 2014 held him guilty and convicted and sentenced him for the afore stated offences the appeal preferred by the appellant came to be dismissed by the high court of bombay at goa by judgment impugned dated 7th december 2020 7 learned counsel for the appellant has tried to persuade this court that the evidence on record does not justify any conviction or sentencing and further submits that the ocular evidence is not at all reliable and the documentary evidence to a great extent supports the defence raised by the appellant 8 learned counsel further submits that there is some unreliable evidence suggesting that the offending vehicle was driven at high speed but such evidence is not at all sufficient to establish either rashness or negligence which are essential ingredients to have a conviction under sections 279 or 304 a of ipc and based on such vague testimony the conviction as recorded is quite unsustainable 3 9 learned counsel further submits that as a matter of record the appellant was holding a learner s licence to drive the motor vehicle on the alleged date of incident dated 13th february 2013 and was accompanied by his wife pw 5 who was sitting beside him and was the holder of a permanent licence to drive the motor vehicle and submits that the evidence was therefore required to be accepted in its totality learned counsel submits that wife of the appellant has deposed that the scooter was overtaking a parked truck and collided head on with the wagon r driven by the appellant but such evidence was unduly rejected by the learned sessions court and further submits that the appellant only has to probabalise his defence and there is no requirement of establishing such defence beyond a reasonable doubt in the given circumstances the conviction which has been upheld by the high court in the impugned judgment is not sustainable and deserves to be interfered by this court 10 per contra learned counsel for the respondent state has supported the order of conviction passed by the high court however the learned counsel did not seriously dispute the submissions of the learned counsel for the appellant relating to the reduction of sentence 4 11 under the directions of this court by an order dated 5th april 2021 the widow of the deceased was impleaded as respondent no 2 to whom notice has been duly served but no one has put in appearance despite service further in compliance of order of this court the compensation amount of rs 3 lakhs has been deposited by the appellant in the registry of this court 12 after going through the judgment and order passed by the high court as well as the courts below we are of the considered opinion that the well reasoned order of conviction passed by the high court for the offences under sections 279 and 304 a ipc needs no interference of this court 13 however it has come on record that the appellant has been appointed as a peon on temporary basis in the directorate of women child development goa under the scheme for providing employment in government to the children of freedom fighters by an order dated 4th may 2017 and has been blessed with the girl child on 19th february 2018 14 in the instant case the appellant has been found to be guilty of offences punishable under sections 279 and 304a ipc for driving rashly and negligently on a public street and his act 5 unfortunately resulted in the loss of the precious human life but it is pertinent to note that there was no allegation against the appellant that at the time of accident he was under the influence of liquor or any other substance impairing his driving skills it was a rash and negligent act simplicitor and not a case of driving in an inebriated condition which is undoubtedly despicable aggravated offence warranting stricter and harsher punishment 15 having regard to all these factors and bearing in mind the fact that the widow of the victim has not come forward despite notice being served and the compensation of rs 3 lakhs has been deposited by the appellant we are of the view that a lenient view can be taken in the matter and the sentence of imprisonment can be reduced 16 accordingly the conviction of the appellant under sections 279 and 304a ipc is maintained however the substantive sentence of imprisonment is reduced to the period already undergone imposition of fine is also affirmed besides the fine an amount of rs 3 lakhs which has been deposited by the appellant by way of compensation in the registry of this court be transferred to the motor accident claims tribunal south goa margao in claim petition no 84 2013 which shall be released by 6 the tribunal to the widow of the deceased smt reshma manohar shetkar 17 the appeal is disposed of accordingly the bail bonds of the appellant if any stand discharged 18 pending application s if any stand disposed of j ajay rastogi j abhay s oka new 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development department of government 2012 09 25 relevant for the purpose manifest that the appellant is the competent authority constituted under section 18 of the maharashtra regional and town and country planning act 1966 by the urban development department of government of maharashtra the 1st respondent who owns and possess the subject land in question bearing survey no 65a hissas admeasuring 37600 sq meters situated at village majri bk tal haveli district pune decided to develop the residential project the lay out plan was 3 submitted by the 1st respondent of the subject land comprised of 12 meters wide pathway road on the right side of the lay out from first end to the other end of the project along with an application under section 44 of the maharashtra land revenue code 1966 to the 2nd respondent and permission was granted for non agricultural use on terms and conditions of the subject land by order dated 25th september 2012 the condition no 4 relevant for the purpose is in the supreme court of india civil appellate jurisdiction civil appeal no s 845 of 2021 arising out of slp civil no s 4322 of 2021 diary no 1282 2020 pune metropolitan regional development authority pmrda appellant s versus prakash harkachand parakh ors respondent s with civil appeal no s 846 of 2021 arising out of slp civil no s 404 of 2020 o r d e r rastogi j civil appeal slp civil diary no 1282 2020 1 delay condoned 2 leave granted 3 the appellant is primarily aggrieved by an interim order passed by the high court dated 4th october 2019 in a writ petition filed at 1 the instance of the 1st respondent pursuant to which the street opened for public use has been restricted on certain terms and conditions which has been referred to in the operative para 17 of the order impugned which is as under 17 however a balance can always be struck we therefore grant an interim order not in absolute terms as claimed by the petitioner but as under a there will be an interim order in terms of prayer clause d but the communication order dated 18th january 2019 will be in abeyance on the condition that the petitioner do not make any construction and keep the portion which is used as private road open to sky they would also not make any construction immediately adjacent to or abutting the same b this private road will be used by the petitioner together with the societies or the buildings occupiers along with members of public but only before 8 30 pm in the night and after 5 30 am in the morning between those hours the road will be closed to the public c this private road can be enclosed on both sides by putting up iron gates or boom barriers and placing security personnel d the petitioner will display a notice board on both sides to this effect and allow the members of public to use this road though styled as internal road from 5 30 am in the morning until 8 30 pm in the night e this arrangement will be without prejudice to the rights and contentions of both sides f this will not confer any rights in either parties presently 2 g the usage will not also make the 1st respondent together with the 2nd respondent the absolute owner of the property h in the event any wall has been demolished so as to protect this road from indiscriminate and uncontrolled so also unrestricted use by the public then the 1st respondent shall allow the petitioner to reconstruct the wall to the extent it was earlier but this wall will have the gates or barriers as directed by us i as an added safety precaution this road will not be used by heavy vehicles or buses and will be used only by lmvs two wheelers and auto rickshaws to ensure this a height barrier may be installed by the petitioner the costs of the gates barriers will be borne by the petitioner societies j there will be no public parking on this road and all parking will be for residents only k this order will operate as an interim arrangement during the pendency of this writ petition 4 the facts in brief relevant for the purpose manifest that the appellant is the competent authority constituted under section 18 of the maharashtra regional and town and country planning act 1966 by the urban development department of government of maharashtra the 1st respondent who owns and possess the subject land in question bearing survey no 65a hissas admeasuring 37600 sq meters situated at village majri bk tal haveli district pune decided to develop the residential project the lay out plan was 3 submitted by the 1st respondent of the subject land comprised of 12 meters wide pathway road on the right side of the lay out from first end to the other end of the project along with an application under section 44 of the maharashtra land revenue code 1966 to the 2nd respondent and permission was granted for non agricultural use on terms and conditions of the subject land by order dated 25th september 2012 the condition no 4 relevant for the purpose is referred hereunder as 4 the maintenance of the open space and roads in the layout should be done by the applicant otherwise it should be handed over to the appropriate authority for maintenance these places and roads should be kept open to all public consumption also the roads should be kept open for use by the neighboring landowners 5 in furtherance thereof 1st respondent submitted an application for sanction of the revised lay out and building plans of the subject property to the 2nd respondent which was approved on the terms and conditions vide order dated 29th december 2014 24th february 2015 the condition no 4 of order dated 25th september 2012 and no 6 of order dated 24th february 2015 are almost parametria and relevant for the purpose in reference to grant of the use of 12 meters road to be made accessible to the public is referred to hereunder 4 6 the applicant shall maintain the roads and open spaces of the project or else shall hand it over to the competent authority for its maintenance these open places and the roads shall be open for the use of all the public similar roads shall be kept open for the use of the neighbouring adjacent land owners 6 it reveals from the record that shewalewadi grampanchayat respondent no 3 made a representation to the appellant and raised certain objections 7 after issuance of notice to the 1st respondent and taking note of the material on record the appellant directed the 1st respondent to open the access of 12 meters road to the public at large vide its order dated 4th september 2018 which came to be challenged by the 1st respondent in writ petition no 11775 2018 and was disposed of with a direction to grant a fair opportunity of hearing to the 1st respondent vide order dated 16th october 2018 8 in pursuance thereof the matter was examined afresh and after affording an opportunity of hearing order came to be passed on 18th january 2019 with a direction to the 1st respondent that the subject road and open space shall be kept open for the use of general public and also to be kept open for the use of the adjoining neighbouring land owners the relevant part of the order is as under 5 considering the above facts and the approved plans it is seen that the fsi of an area admeasuring 3838 18 sq m under the 12 0 wide internal road has been utilized in the building plans in the non agricultural order no pmh na sr 520 2012 dated 25 09 2012 the collector pune has put condition no 4 as under the layout roads and open space shall be taken care of maintenance by the applicant else they shall be handed over to the appropriate authority for maintenance these road and open space shall be kept open for the use of general public also the roads shall be kept open for the use of the adjoining neighbouring land owners it is mandatory for the developer to comply with this condition in the public interest and as per sanctioned building permission the north south 12 0 mtr wide road shall be opened for the general public by the developer immediately else action shall be taken by the authority to open the road 9 the same came to be challenged by the 1st respondent in writ petition no 8242 of 2019 the division bench of the high court pending writ petition taking note of the submissions by an interim order practically modified and made the ad hoc arrangement by order dated 4th october 2019 on its own terms imposing certain time limits when the subject road would be made available for public use and when it would be used strictly as an internal road for the occupants of the building we were informed that the public was using the road throughout till the impugned order was passed by the high court 6 10 the learned counsel for the parties have made their submissions on merits of the writ petition and also on the legality of the order dated 18th january 2019 however we are not dilating on the issue at this stage as the writ petition is pending consideration before the high court 11 the nature of modification which has been made by the high court vide order impugned dated 4th october 2019 in the form of an ad hoc interim arrangement in our view is exceeding its jurisdiction and not within the realm of power of judicial review to be exercised under article 226 of the constitution it is well settled that by an interim order even the final relief ordinarily should not be granted 12 consequently the appeal succeeds and is accordingly allowed the order impugned passed by the high court dated 4th october 2019 is hereby quashed and set aside we make it clear that the writ petition no 8242 of 2019 be decided independently without being influenced by the observations made by us in the present order on its own merits in accordance with law no costs 13 pending application s if any stand disposed of 7 civil appeal slp c no 404 2020 14 leave granted 15 the civil appeal in terms of the order dated 10th march 2021 passed in civil appeal slp civil diary no 1282 2020 stands disposed of no costs 16 pending application s if any stand disposed of j indu malhotra j ajay rastogi new delhi march 10 2021 8 in the supreme court of india civil appellate jurisdiction civil appeal no s 845 of 2021 arising out of slp civil no s 4322 of 2021 diary no 1282 2020 pune metropolitan regional development authority pmrda appellant s versus prakash harkachand parakh ors respondent s with civil appeal no s 846 of 2021 arising out of slp civil no s 404 of 2020 o r d e r rastogi j civil appeal slp civil diary no 1282 2020 1 delay condoned 2 leave granted 3 the appellant is primarily aggrieved by an interim order passed by the high court dated 4th october 2019 in a writ petition filed at 1 the instance of the 1st respondent pursuant to which the street opened for public use has been restricted on certain terms and conditions which has been referred to in the operative para 17 of the order impugned which is as under 17 however a balance can always be struck we therefore grant an interim order not in absolute terms as claimed by the petitioner but as under a there will be an interim order in terms of prayer clause d but the communication order dated 18th january 2019 will be in abeyance on the condition that the petitioner do not make any construction and keep the portion which is used as private road open to sky they would also not make any construction immediately adjacent to or abutting the same b this private road will be used by the petitioner together with the societies or the buildings occupiers along with members of public but only before 8 30 pm in the night and after 5 30 am in the morning between those hours the road will be closed to the public c this private road can be enclosed on both sides by putting up iron gates or boom barriers and placing security personnel d the petitioner will display a notice board on both sides to this effect and allow the members of public to use this road though styled as internal road from 5 30 am in the morning until 8 30 pm in the night e this arrangement will be without prejudice to the rights and contentions of both sides f this will not confer any rights in either parties presently 2 g the usage will not also make the 1st respondent together with the 2nd respondent the absolute owner of the property h in the event any wall has been demolished so as to protect this road from indiscriminate and uncontrolled so also unrestricted use by the public then the 1st respondent shall allow the petitioner to reconstruct the wall to the extent it was earlier but this wall will have the gates or barriers as directed by us i as an added safety precaution this road will not be used by heavy vehicles or buses and will be used only by lmvs two wheelers and auto rickshaws to ensure this a height barrier may be installed by the petitioner the costs of the gates barriers will be borne by the petitioner societies j there will be no public parking on this road and all parking will be for residents only k this order will operate as an interim arrangement during the pendency of this writ petition 4 the facts in brief relevant for the purpose manifest that the appellant is the competent authority constituted under section 18 of the maharashtra regional and town and country planning act 1966 by the urban development department of government of maharashtra the 1st respondent who owns and possess the subject land in question bearing survey no 65a hissas admeasuring 37600 sq meters situated at village majri bk tal haveli district pune decided to develop the residential project the lay out plan was 3 submitted by the 1st respondent of the subject land comprised of 12 meters wide pathway road on the right side of the lay out from first end to the other end of the project along with an application under section 44 of the maharashtra land revenue code 1966 to the 2nd respondent and permission was granted for non agricultural use on terms and conditions of the subject land by order dated 25th september 2012 the condition no 4 relevant for the purpose is referred hereunder as 4 the maintenance of the open space and roads in the layout should be done by the applicant otherwise it should be handed over to the appropriate authority for maintenance these places and roads should be kept open to all public consumption also the roads should be kept open for use by the neighboring landowners 5 in furtherance thereof 1st respondent submitted an application for sanction of the revised lay out and building plans of the subject property to the 2nd respondent which was approved on the terms and conditions vide order dated 29th december 2014 24th february 2015 the condition no 4 of order dated 25th september 2012 and no 6 of order dated 24th february 2015 are almost parametria and relevant for the purpose in reference to grant of the use of 12 meters road to be made accessible to the public is referred to hereunder 4 6 the applicant shall maintain the roads and open spaces of the project or else shall hand it over to the competent authority for its maintenance these open places and the roads shall be open for the use of all the public similar roads shall be kept open for the use of the neighbouring adjacent land owners 6 it reveals from the record that shewalewadi grampanchayat respondent no 3 made a representation to the appellant and raised certain objections 7 after issuance of notice to the 1st respondent and taking note of the material on record the appellant directed the 1st respondent to open the access of 12 meters road to the public at large vide its order dated 4th september 2018 which came to be challenged by the 1st respondent in writ petition no 11775 2018 and was disposed of with a direction to grant a fair opportunity of hearing to the 1st respondent vide order dated 16th october 2018 8 in pursuance thereof the matter was examined afresh and after affording an opportunity of hearing order came to be passed on 18th january 2019 with a direction to the 1st respondent that the subject road and open space shall be kept open for the use of general public and also to be kept open for the use of the adjoining neighbouring land owners the relevant part of the order is as under 5 considering the above facts and the approved plans it is seen that the fsi of an area admeasuring 3838 18 sq m under the 12 0 wide internal road has been utilized in the building plans in the non agricultural order no pmh na sr 520 2012 dated 25 09 2012 the collector pune has put condition no 4 as under the layout roads and open space shall be taken care of maintenance by the applicant else they shall be handed over to the appropriate authority for maintenance these road and open space shall be kept open for the use of general public also the roads shall be kept open for the use of the adjoining neighbouring land owners it is mandatory for the developer to comply with this condition in the public interest and as per sanctioned building permission the north south 12 0 mtr wide road shall be opened for the general public by the developer immediately else action shall be taken by the authority to open the road 9 the same came to be challenged by the 1st respondent in writ petition no 8242 of 2019 the division bench of the high court pending writ petition taking note of the submissions by an interim order practically modified and made the ad hoc arrangement by order dated 4th october 2019 on its own terms imposing certain time limits when the subject road would be made available for public use and when it would be used strictly as an internal road for the occupants of the building we were informed that the public was using the road throughout till the impugned order was passed by the high court 6 10 the learned counsel for the parties have made their submissions on merits of the writ petition and also on the legality of the order dated 18th january 2019 however we are not dilating on the issue at this stage as the writ petition is pending consideration before the high court 11 the nature of modification which has been made by the high court vide order impugned dated 4th october 2019 in the form of an ad hoc interim arrangement in our view is exceeding its jurisdiction and not within the realm of power of judicial review to be exercised under article 226 of the constitution it is well settled that by an interim order even the final relief ordinarily should not be granted 12 consequently the appeal succeeds and is accordingly allowed the order impugned passed by the high court dated 4th october 2019 is hereby quashed and set aside we make it clear that the writ petition no 8242 of 2019 be decided independently without being influenced by the observations made by us in the present order on its own merits in accordance with law no costs 13 pending application s if any stand disposed of 7 civil appeal slp c no 404 2020 14 leave granted 15 the civil appeal in terms of the order dated 10th march 2021 passed in civil appeal slp civil diary no 1282 2020 stands disposed of no costs 16 pending application s if any stand disposed of j indu malhotra j ajay rastogi new delhi march 10 2021 8 1316 2019_c a no 000680 000680 2021 2018 08 29 1 e jpa cr r epjpkd wk chpikapay nky kiwapl l mjpfhutuk g chpikapay nky kiwapl vz 680 2021 rpwg g mdkjp kd c vz 5343 2019 ypue j vgfpwj a dpad m g e jpah nky kiwapl lhsh fs vjph v mhfk bgukhs nfhd kw wk gyh vjph nky kiwapl lhsh fs jph g g iu k h z g kpf epjpaurh jpu mh rghc bul o 1 mdkjp th fg gl lj 2 ep ng k vk o vz 17290 2017 y gpwg gpf fg gl l fw wwpe j jdpakh epjpaurh mth fspd cj juit cwjpbra j nky kiwapl lhsupd nky kiwapl il ep ng nk vk o vz 907 2018 y bkl uh cah epjpkd wj jhy kjiu mkh t gpwg gpf fg gl l 29 08 2018 mk njjpaplg gl l jph g g iu kw wk cj jutpd k yk js sgo bra jjhy kdf fiwa w w k nky kiwapl e jpa xd wpaj jhy jhf fy bra ag gl ls sj 3 epjpg nguhiz kditj jph t bra ifapy jpys s 1 mk vjph nky kiwapl lhsuhy jhf fy bra ag gl l ep ng k vk o vz 17290 2017 y gpwg gpf fg gl l 26 10 2017 mk njjpaplg gl l cj jutpd k yk tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 1 mk vjph nky kiwapl lhsuf f rje jpug nghuhl l tpuh fsf fhd xa t jpaj ij 2 th ft k t t j jut fpilf fg bgw w ehspypue j ehd f thu fhyj jpw fs cupa cj jut fs gpwg gpf ft k jpys s nky kiwapl lhsuf f cj jut fs gpwg gpf fg glfpd wd 4 fw wwpe j jdpakh epjpaurupd cj juthy kdf fiwa w w jpys s nky kiwapl lhsh cupikg gl laf tw 15 d fph epjpg nguhiz nky kiwapl ilj jhf fy bra jhh mj vjph g g f fs shd cj juthy js sgo bra ag glfpwj 5 fs s 1 mk vjph nky kiwapl lhsh 10 04 1997 md w tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph xa t jpak th ftjw fhf jdj kjy tpz zg gj ijr rkh g gpj jhh j 3 mtj vjph nky kiwapl lhsh k ykhf 2 mtj vjph nky kiwapl lhsuhy mdg gg gl lj 26 07 2001 md w nky kiwapl lhsuhy bgwg gl l nkw go fojj jpy tpz zg gk kiwahf g h j jp bra ag gltpy iy vd gjk rhd wpjh th feh fss xutuhy th fg gl l rhd wpjh bjsptw w ug gjhft k fz lwpag gl lj jpl lg go cupa mjpfhupaplkpue j bgwg glk gjpt u y yhr rhd wpjh vd v mh rp jhf fy bra ag gltpy iy 2 mtj vjph nky kiwapl lhsuhy cwjpahd gupe jiu vjk bra ag glhjjhy 10 04 1997 md w 1 mk vjph nky kiwapl 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jpy jptpukhfg g nfw wjhyk mtuj g nfw gpd fhuzkhf mth jz of fg gl l 05 01 1944 kjy 05 07 1944 tiu mw khj fsf fk nkyhf mypg g uk kj jpa rpiwapy milf fg gl lhh vd wk bjuptpf fg gl ls sj 12 1997 mk mz oy rkh g gpf fg gl l mtuj kjy tpz zg gj ijf fwpg gplifapy mtuhy rkh g gpf fg gl l mt tpz zg gk nky kiwapl lhsuhy cupa ftdj jld guprpypf fg gltpy iy vd wk nky kiwapl lhsh 1 mk vjph nky kiwapl lhshpd tpz zg gj ijg guprpypf ifapy mrl il kdg ghd ikahd mqqfkiwa ld ele jbfhz lhh vd wk rhl liuf fg gl ls sj mtuj ke ija epuhfupg igf fwpg gplifapy mtuj kjy tpz zg gj jpd ngupy kjy nky kiwapl lhsuhy bra ag gl l mj jifabjhu epuhfupg g kdk nghdnghf filanjhl jd dpr irahd nghf fkhfk vd w bjuptpf fg gl ls sj 13 nky kiwapl lhsuhy mdg gg gl l 30 08 2017 mk njjpaplg gl l fojj jpw fg gjpyspf ifapy jpu v vk yl rkzd vd gtiuj jtpu kw w midj j rje jpug nghuhl l tpuh fsk fhykhfptpl ldh tuj cld ifjp rhd wpjh jpu v rp bguparhkp vd gtupd rhd wpjgld vw bfdnt nrh j j rkh g gpf fg gl ls sj t thwhf mth j jpl lj jpd fph fwpg 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thj fsf f mjuthf nk t rje jpu nghuhl l mikg g vjph a dpad m g e jpah kw wk gyh 1 vd w thf fpy e epjpkd wj jpd jph g g iua k nkyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh 2 vd w thf fpd jph g g iuiaa k rhh t w whh 20 mjw fkhwhf 1 mk vjph nky kiwapl lhsuf fhf kd dpiyahd jpu jpt ahd c _t jt nky kiwapl lhsuf fhf kd dpiyahd fw wwpe j thf fiu uhy bra ag gl l thj fis kwj jiuf ifapy vjph nky kiwapl lhsh 1 2004 7 v rp rp 716 2 2004 7 v rp rp 722 8 tpljiyg nghuhl lj jpy g bflj j bts isnand btspnaw af fj jpd nghj mth rpiwthrkk hg g fis re jpj jnjhl jahupf fg gl l jpl lj jpd go mtuf f cupj jhd xa t jpaj ij neh ikaw w kiwapy he jtpl ljhf thjiuj js shh 21 rpwg g mdkjp kd c vz 11132 2019 thf f fwpg ngl vz 2923 2019 y gpwg gpf fg gl l 26 04 2019 mk njjpaplg gl l cj jut f f v fsj ftdj ij h j j njnghd wbjhu kd e epjpkd wj jhy vw bfdnt js sgo bra ag gl ls sj vd w gzpe jiuf fg gl ls sj nkyk fw wwpe j thf fiu h a dpad m g e jpah vjph rpjhfhe j v jghc p kw wk xuth 3 vd w thf fpy e epjpkd wj jpd jph 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tpz zg gj jld murplkpue j bgwg gl l gjpt u y yh rhd wpjh vd v mh rp kd dpiyg glj jg gltpy iy nkyk kjiu kjd ik epjpj jiw eltuhy rhd wspf fg gl l xu rhd wpjh kl lnk kd dpiyg glj jg gl lj 24 nky kiwapl lhsuf f mdg gg gl l kjyhtj tpz zg gk fwpg gpl l gupe jiunajkpd wp ue jj 2 mtj vjph nky kiwapl lhsuplkpue j mf fojj ijg bgw wjd ngupy 1 mk vjph nky kiwapl lhsupd nfhupf if guprpypf fg gl l epuhfupf fg gl lj mt t j jut wjpahfptpl ljhy mj vjph f fg gltpy iy me j epuhfupg g f fg gpwf rkhh 13 mz lfs fhpj j 1 mk vjph nky kiwapl lhsh bts isand btspnaw vd w af fj jpy g fbfhz ljw fhf 6 khj fsf fk nkyhf mtuj rpiwthrk mdgtpj jj fwpj j thjj jpd ngupy tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 29 08 2017 md w kpz lk xa t jpak nfhupa s shh 2 mtj kiwahf tpz zg gpf fg gl l tpz zg gkk gpw nrh f if gp 5 vd w gjpntlhf kd itf fg gl ls sj nkw go tpz zg gj jpy mth 6 khj fsf fk nkyhf mjhtj 05 01 1944 kjy 05 07 1947 tiuapy rpiwapy ue jjhf bjuptpj js shh j kjy tpz zg gj jpy fwpg gpl ls s fhyj jpypue j 10 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ija epuhfhpg g fwpj j vjt k bjhptpf ftpy iy vdj bjhpfpwj 26 ve jbthu re jh g gj jpyk j jifa kf fpakhd cz ikr r fjpfsila gpur rpidfs ghprpyidf fhf vgk nghj cah epjpkd wk mwptpg g mdg ghkyk nky kiwapl lhsuhy mspf fg gl l fw wr rhl lfis kwf f vjpuhiza wjpahtzk jhf fy bra a k tha g gpid mspf fhkyk vjph nky kiwapl lhsuhy jhf fy bra ag gl l kdtpidj jph t bra jpuf ff tlhj nk t rje jpug nghuhl l tpuh fspd mikg g vjph a dpad m g e jpah kw wk gyh 1 vd w thf fpyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh2 vd w thf fpyk fw wwpe j tljy jiyik thf fiu uhy rhh t wg gl l e epjpkd wj jph g g iufs nky kiwapl lhshpd thjj jpw f mjutspf fk nk t rje jpu nghuhl l tpuh fspd mikg g vjph 12 a dpad m g e jpah kw wk gyh vd w thf fpy chpa fg tpz zg g fs njitg glk mtz fspd go cwjpbra ag gl ouf ftpy iy vd gijg ghprpypj j tpz zg gj ij epuhfhpj js sjhff fuj jiuj js snghj e j epjpkd wk jpy jiyaplkoahj vd wk mj jifa fhz kot fs kuzhdit vd nwh epahakw wit vd nwh twkoahj vd wk e epjpkd wk jph khdpj js sj 27 nkyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh 2 vd w thf fpy 1980 mk mz od tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph th fg glk xa t jpak mj jpl lj jpd fph njitg glk rhd wpd go xg gspf fg gl ls snjad wp ntbwe j kiwapyk my y vd w e epjpkd wk jph khdpj js sj nkw go jph g g iuapy e epjpkd wk cah epjpkd wj jhy gpwg gpf fg gl l cj juit khw wpaikj js sj 28 jw nghija thf fpy 1 mk vjph nky kiwapl lhsuhy 10 04 1997 md w rkh g gpf fg gl l tpz zg gk epuhfhpf fg gl l me j cj jut wjpahfptpl lj vd whyk mth kpz lk mnj nfhhpf ifa ld nky kiwapl lhsiu mqqfpdhh vd w fhuzj jpw fhf nky kiwapl lhsh ey ybjhu epiyg ghl il vlj js shh chpa mjpfhuikg g tpz zg gj ijg ghprpypg gjw f kd ng 1 mk vjph nky kiwapl lhsh epjpg nguhiz kdtpidj jhf fy bra jjd thapyhf cah epjpkd wj ij mqqfpdhh cah epjpkd wk kdit vw wf bfhz lnjhld wp mwptpg g vjkpd wpa k nky kiwapl lhsuf f vjpuhiza wjpahtzk jhf fy bra a k tha g gspf fhkyk mjidj jph t bra jj 13 29 eh fs epjpah uhaj jhy gpwg gpf fg gl l cj juita k muha e jpuf fpnwhk cah epjpkd w epjpah uhakk fw wwpe j jdpakh epjpaurhpd cj juit cwjpbra ifapy nky kiwapl lhsuhy vgg gg gl l gy ntw fhuz fisg ghprpypj jpuf ftpy iy 30 murhy thjplg gl lthw 1 mk vjph nky kiwapl lhsh jpl lj jpd go xa t jpak bgw wf bfhz ouf fpwhh vd gj cz ikahf ue jhyk mnjrkaj jpy 1980 mk mz l jpl lj jpd fph xa t jpaj ijf nfhu 1 mk vjph nky kiwapl lhsh njitg glk rhd wpid jpl lj jpd fph fwpg gplg gl lthw mspj jpuf fntz lk jpl lj jpd fph chpiknfhufpwnghj xa t jpak th ftjw fhd jfjpf fhpa mk rj ijj jpl lj jpy fwpg gpl lthw xuth epiwt bra jhyd wp tpz zg gjhuh vtuk mj jifa xa t jpa fis xh chpikrhh e j tplakhff nfhukoahj 31 vjph nky kiwapl lhsh epjpg nguhiz kdjhuuf fhf kd dpiyahd fw wwpe j thf fiu h rpwg g mdkjp kdit vlj j vlg gpnyna epuhfhpf ifapy e j epjpkd wj jhy gpwg gpf fg gl l cj jutpd kpjk nkyk e epjpkd wj jpd jph g ig a dpad m g e jpah vjph rpjhfhe j v jghc p kw wk xuth 3 vd w thf fpy e j epjpkd wj jpd jph g g iu kpjk rhh t w wpue jnghjpyk e epjpkd wj jhy gpwg gpf fg gl l cj jut k nkyk a dpad m g e jpah vjph rpjhfhe j v jghc p kw wk xuth vd w thf fpd jph g g iua k mtuj nfhhpf iff f mjuthf vjk cjtp g hpahj xu fwpg gpl l tpz zg gjhuh 1980 mk mz l tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph xa t jpak bgw chpikahdtuh vd gj xt bthu 14 thf fpd r fjpfisa k kd dpiyg glj jg gl l mtzr rhd wfisa k fuj jpw bfhz l ghprpypf fg glntz oa xu tplakhfk mt tifapy fw wwpe j thf fiu uhy rhh t wg gl l jph g g iu mtuj thf ff f mjuthf ve j cjtpa k g hpatpy iy 32 nkny fwpg gplg gl ls s fhuz fisf fuj jpw bfhz l eh fs e j nky kiwapl il mdkjpj j bkl uh cah epjpkd wj jhy kjiu mkh t ep ng nk vk o vz 907 2018 y gpwg gpf fg gl l 29 08 2018 mk njjpaplg gl l jph g g iuia epf fwt bra fpnwhk jd tpisthf epjpg nguhiz kd vk o vz 17290 2017 y jhf fy bra ag gl l epjpg nguhiz kd bryt j bjhiffs fwpj j cj jut vjkpd wp js sgo bra ag glfpwj khz g kpf epjpaurh jpu mnrhf g c d khz g kpf epjpaurh jpu mh rghc bul o g j jpy yp 22 02 2021 chpikj jwg g tl lhu bkhhpapy bkhhpahf fk bra ag gl l j jph g g iuahdj thf fho jd dila bkhhpapy g hpe jbfhs tjw f gad glj jpf bfhs tjw fl gl lnjad wp ntbwe j nehf fj jpw fhft k gad glj jpf bfhs syhfhj midj j eilkiwahd kw wk myty kiwahd nehf f fsf fk kw wk jph g g iuia epiwntw wyf fk braw glj jyf fk mjd m fpyg gjpg ng mjpfhug g h tkhdjhfk 1 e jpa cr r epjpkd wk chpikapay nky kiwapl l mjpfhutuk g chpikapay nky kiwapl vz 680 2021 rpwg g mdkjp kd c vz 5343 2019 ypue j vgfpwj a dpad m g e jpah nky kiwapl lhsh fs vjph v mhfk bgukhs nfhd kw wk gyh vjph nky kiwapl lhsh fs jph g g iu k h z g kpf epjpaurh jpu mh rghc bul o 1 mdkjp th fg gl lj 2 ep ng k vk o vz 17290 2017 y gpwg gpf fg gl l fw wwpe j jdpakh epjpaurh mth fspd cj juit cwjpbra j nky kiwapl lhsupd nky kiwapl il ep ng nk vk o vz 907 2018 y bkl uh cah epjpkd wj jhy kjiu mkh t gpwg gpf fg gl l 29 08 2018 mk njjpaplg gl l jph g g iu kw wk cj jutpd k yk js sgo bra jjhy kdf fiwa w w k nky kiwapl e jpa xd wpaj jhy jhf fy bra ag gl ls sj 3 epjpg nguhiz kditj jph t bra ifapy jpys s 1 mk vjph nky kiwapl lhsuhy jhf fy bra ag gl l ep ng k vk o vz 17290 2017 y gpwg gpf fg gl l 26 10 2017 mk njjpaplg gl l cj jutpd k yk tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 1 mk vjph nky kiwapl lhsuf f rje jpug nghuhl l tpuh fsf fhd xa t jpaj ij 2 th ft k t t j jut fpilf fg bgw w ehspypue j ehd f thu fhyj jpw fs cupa cj jut fs gpwg gpf ft k jpys s nky kiwapl lhsuf f cj jut fs gpwg gpf fg glfpd wd 4 fw wwpe j jdpakh epjpaurupd cj juthy kdf fiwa w w jpys s nky kiwapl lhsh cupikg gl laf tw 15 d fph epjpg nguhiz nky kiwapl ilj jhf fy bra jhh mj vjph g g f fs shd cj juthy js sgo bra ag glfpwj 5 fs s 1 mk vjph nky kiwapl lhsh 10 04 1997 md w tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph xa t jpak th ftjw fhf jdj kjy tpz zg gj ijr rkh g gpj jhh j 3 mtj vjph nky kiwapl lhsh k ykhf 2 mtj vjph nky kiwapl lhsuhy mdg gg gl lj 26 07 2001 md w nky kiwapl lhsuhy bgwg gl l nkw go fojj jpy tpz zg gk kiwahf g h j jp bra ag gltpy iy vd gjk rhd wpjh th feh fss xutuhy th fg gl l rhd wpjh bjsptw w ug gjhft k fz lwpag gl lj jpl lg go cupa mjpfhupaplkpue j bgwg glk gjpt u y yhr rhd wpjh vd v mh rp jhf fy bra ag gltpy iy 2 mtj vjph nky kiwapl lhsuhy cwjpahd gupe jiu vjk bra ag glhjjhy 10 04 1997 md w 1 mk vjph nky kiwapl lhsuhyhd tpz zg gk 27 02 2004 mk njjpaplg gl l mjd fojk k yk kjy nehf fpnyna nky kiwapl lhsuhy epuhfupf fg gl lj mjd gpwf rkhh 13 mz lfshf 1 mk vjph nky kiwapl lhsuhy ve j eltof ifa k vlf fg gl ouf ftpy iy mth bts isand btspnaw af fj jpd nghj 05 01 1944 ypue j 05 07 1944 tiuapykhf 6 khj fsf fk nkyhf rpiwapy ue jjhff twp 3 tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 2011 mk mz oypue j xa t jpak th fkhw fs s nky kiwapl lhsuf f kpz lk 29 08 2017 md w xu fojk mdg gpdhh 6 nkw go fojj jpw f mjhukhf mtz fs vjk y yhjjhy tje jpujh irdpf rk khd xa t jpaj jpl lg go njitg glk midj j tpjpkiwfisa k g h j jpbra j nfhupf if tpz zg gj ij mdg g khw 1 mk vjph nky kiwapl lhsuf f xu efyld 2 mk vjph nky kiwapl lhsuf f kftupapl l 27 10 2017 mk njjpaplg gl l xu fojj ij mdg gpdhh vd gj nky kiwapl lhsupd thjkhfk f fl lj jpy fs s 1 mk vjph nky kiwapl lhsh tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph rje jpug nghuhl l tpuh fsf fhd xa t jpaj ij th fkhw fs s nky kiwapl lhsuf f cj jutpl braywj jk epjpg nguhiz k ykhf gzpf ff twp bkl uh cah epjpkd wk kjiu mkh t kd ghf epjpg nguhiz kditj jhf fy bra js shh 7 kdtpys s rhl liufis kwjypf f vjpuhiza wjp mtzj ij jhf fy bra a tha g g vjk mspf fhkyk mwptpg g vjk mspf fhkyk epjpg nguhiz kd nfl fg gl l 26 10 2017 mk njjpaplg gl l cj jut k yk jph t bra ag gl lj vd gj nky kiwapl lhsupd thjkhfk 8 vw gspf fg bgw w rhd wpjh th feuhy th fg gl l rhd wpjh xa t jpak th ftjw f nghjkhdj vd w fhz koitg gjpt bra j 1 mk vjph nky kiwapl lhsuhy mdg gg gl l rpy foj fisf fwpg gpl l fw wwpe j jdpakh epjpaurh tje jpujh irdpf rk khd xa t jpaj jpl lj jpd 4 fph xa t jpak th ft k mj bjhlh ghf cupa cj jut fs gpwg gpf ft k nky kiwapl lhsiug gzpj j kdtpidj jph t bra js shh 9 epjpg nguhiz kdtpy mwptpg g vjk mspf fg gltpy iy vd wk rje jpug nghuhl l tpuh fsf fhd xa t jpak th ftjw fhf 1 mk vjph nky kiwapl lhsuhy rkh g gpf fg gl l tpz zg gj jpw f mjhukhf njitg glk mtz fs y iy vd wk xa t jpak th ftjw fhd kjy tpz zg gk epuhfupj jj fwpj j bjuptpf ftpy iy vd wk twp kw wtw wf fpilapy epjpah uhak kd ghf fwpg gpl l fhuz fs nky kiwapl oy vgg gg gl ls snghjpy tl cah epjpkd wk bry yj jf f fhuz fs mspf fhkyk nky kiwapl oy vgg gg gl l fhuz fs vtw iwa k guprpypf fhkyk nky kiwapl ilj js sgo bra js sj 10 e epjpkd wk kd ghf 1 mk vjph nky kiwapl lhsuhy vjpuhiza wjp mtzk jhf fy bra ag gl ls sj nky kiwapl lhsuhy bra ag gl l gy ntw rhl liufis kwf ifapy nky kiwapl lhsh cah epjpkd wj jhy gpwg gpf fg gl l cj jut fsf f fph g goahky vw bfdnt mtkjpg g kditj jhf fy bra js shh mth mjidj bjuptpf fhky rpwg g mdkjp kdit e epjpkd wk kd ghfj jhf fy bra js shh vd w bjuptpf fg gl ls sj nky kiwapl oy brhy yg gl ls s rhl liufisg bghwj jtiuapy e jpa rje jpug nghuhl lj jpy tpukld g bflj jf bfhz l mth rpiwthrk 1944 mk mz oy 6 khj fs rpiwj jz lid mdgtpj jj kl lkpd wp mdgtpj jj cl gl gy hg g fisa k d dy fisa k mile jhh vd w bjuptpf fg gl ls sj nkyk mth jlg g f fhty mizfisa k 5 vjph bfhz l 1942 mk mz oy 1942 mf l kjy 1943 ork gh tiu xuhz lf fk nkyhf jiykiwthf ue jhh 11 nkyk mth bts isand btspnaw af fj jpy jptpukhfg g nfw wjhyk mtuj g nfw gpd fhuzkhf mth jz of fg gl l 05 01 1944 kjy 05 07 1944 tiu mw khj fsf fk nkyhf mypg g uk kj jpa rpiwapy milf fg gl lhh vd wk bjuptpf fg gl ls sj 12 1997 mk mz oy rkh g gpf fg gl l mtuj kjy tpz zg gj ijf fwpg gplifapy mtuhy rkh g gpf fg gl l mt tpz zg gk nky kiwapl lhsuhy cupa ftdj jld guprpypf fg gltpy iy vd wk nky kiwapl lhsh 1 mk vjph nky kiwapl lhshpd tpz zg gj ijg guprpypf ifapy mrl il kdg ghd ikahd mqqfkiwa ld ele jbfhz lhh vd wk rhl liuf fg gl ls sj mtuj ke ija epuhfupg igf fwpg gplifapy mtuj kjy tpz zg gj jpd ngupy kjy nky kiwapl lhsuhy bra ag gl l mj jifabjhu epuhfupg g kdk nghdnghf filanjhl jd dpr irahd nghf fkhfk vd w bjuptpf fg gl ls sj 13 nky kiwapl lhsuhy mdg gg gl l 30 08 2017 mk njjpaplg gl l fojj jpw fg gjpyspf ifapy jpu v vk yl rkzd vd gtiuj jtpu kw w midj j rje jpug nghuhl l tpuh fsk fhykhfptpl ldh tuj cld ifjp rhd wpjh jpu v rp bguparhkp vd gtupd rhd wpjgld vw bfdnt nrh j j rkh g gpf fg gl ls sj t thwhf mth j jpl lj jpd fph fwpg gpl ls s midj j braw fl lisfisa k g h j jp bra js shh vd w tifapy cah epjpkd wj jhy gpwg gpf fg gl l cj jut fspy jiyapl ve jf fhuz fsk 6 y iy vd w twp 07 09 2017 mk njjpaplg gl l fojk thapyhf mth gjpyspj js sjhff twg gl ls sj 14 eh fs e jpa xd wpaj jpw fhf kd dpiyahd fw wwpe j tljy jiyik thf fiu h jpukjp bry tp khjtp jpthd kw wk vjph nky kiwapl lhsh epjpg nguhiz kdjhuuf fhf kd dpiyahd thf fiu h jpu jpt ahd c _t jt mfpnahupd thj fisf nfl nlhk 15 epjpg nguhiz kdtpys s rhl liufis kwjypf f vjph miza wjpahtzk jhf fy bra a k tha g g vjida k th fhkyk mwptpg g vjk mdg ghkyk cah epjpkd wj jpd fw wwpe j jdpakh epjpaurh kdtpidj jpu t bra js shh vd w e jpa xd wpaj jpw fhf kd dpiyahd fw wwpe j tljy jiyik thf fiu uhy thjplg gl ls sj e jpa murikg g r rl lj jpd tfkiwf tw 226 d fph epjpa kw ma t mjpfhu fisr braywj jk tifapy cah epjpkd wk xa t jpak th ftjw fhd mf fg g h tkhd cj jut fisg gpwg gpf f fhy jtwpihj j tpl lj vd w gzpe jiuf fg gl ls sj 16 xa t jpak rpy epge jidfsld th ftjw fhd jpl lk jahupf fg gl ls snghj me j epge jidfisg g h j jpbra jpug gj fwpj j cupa mjpfhupahy ma t bra ag gl lhyd wp xa t jpak th fg gzpj j cj jut fs vjk gpwg gpf fg gl ouf ff tlhj vd w rkh g gpf fg gl ls sj 17 kjy goahf 1 mk vjph nky kiwapl lhsh 1997 mk mz oy xa t jpaj ij th ftjw fhf tpz zg gpj js shh vd wk mj fwpg gpl l 7 gupe jiufs vjk y yhky 3 mk vjph nky kiwapl lhsh k ykhf 2 mk vjph nky kiwapl lhsuf f mdg gg gl lj vd wk gy mz lfs fhpe jgpwf mj epuhfupf fg gl ltpl lj vd wk kpz lk xa t jpak th ftjw fhf tpz zg gpf fg gl ls sj mj cupa mjpfhupahy guprpypf fg gltjw f kd ghfnt 1 mk vjph nky kiwapl lhsh cah epjpkd wj ij mqqfpa s shh vd wk cah epjpkd wk vjpuhiza wjpahtzk jhf fy bra a tha g ngjk mspf fhky kditj jph t bra js sbjd wk gzpe jiuf fg gl ls sj 18 e j nky kiwaplhdj gy ntw fhuz fis vgg gpa s snghjpyk epjpah uhakk guprpypf fj jtwp fs s nky kiwapl lhsuhy jhf fy bra ag gl l nky kiwapl ilj js sgo bra jjd k yk fw wwpe j jdpakh epjaurhpd cj juit cwjpbra jj vd w gzpe jiuf fg gl ls sj 19 fw wwpe j thf fiu h jdj thj fsf f mjuthf nk t rje jpu nghuhl l mikg g vjph a dpad m g e jpah kw wk gyh 1 vd w thf fpy e epjpkd wj jpd jph g g iua k nkyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh 2 vd w thf fpd jph g g iuiaa k rhh t w whh 20 mjw fkhwhf 1 mk vjph nky kiwapl lhsuf fhf kd dpiyahd jpu jpt ahd c _t jt nky kiwapl lhsuf fhf kd dpiyahd fw wwpe j thf fiu uhy bra ag gl l thj fis kwj jiuf ifapy vjph nky kiwapl lhsh 1 2004 7 v rp rp 716 2 2004 7 v rp rp 722 8 tpljiyg nghuhl lj jpy g bflj j bts isnand btspnaw af fj jpd nghj mth rpiwthrkk hg g fis re jpj jnjhl jahupf fg gl l jpl lj jpd go mtuf f cupj jhd xa t jpaj ij neh ikaw w kiwapy he jtpl ljhf thjiuj js shh 21 rpwg g mdkjp kd c vz 11132 2019 thf f fwpg ngl vz 2923 2019 y gpwg gpf fg gl l 26 04 2019 mk njjpaplg gl l cj jut f f v fsj ftdj ij h j j njnghd wbjhu kd e epjpkd wj jhy vw bfdnt js sgo bra ag gl ls sj vd w gzpe jiuf fg gl ls sj nkyk fw wwpe j thf fiu h a dpad m g e jpah vjph rpjhfhe j v jghc p kw wk xuth 3 vd w thf fpy e epjpkd wj jpd jph g g iuapd kpj rhh t w w cah epjpkd wj jhy gpwg gpf fg gl l vjph g g f fs shd cj jutpy rl lkiwnfl vjk y iybad wk mjpy jiyaplf fhuz fs vjk y iybad wk thjpl ls shh 22 nkyk vw bfdnt jhf fy bra ag gl ls s mtz fs tje jpujh irdpf rk khd xa t jpaj jpl lj jpd go xa t jpak th ftjw f nghjkhdit vd wk xa t jpak th ftjw fhd mtuj tpz zg gj ij nky kiwapl lhsh guprpypf fhjjhy cah epjpkd w fw wwpe j jdpakh epjpaurh xa t jpak th ftjw fhd cj jut fisr rupahfnt gpwg gpj js shh vd wk mjpy jiyapl fhuz fs vjk y iybad wk gzpe jiuf fg gl ls sj 23 kjyhtjhf fs s 1 mk vjph nky kiwapl lhsh 1997 mk mz oy xa t jpak th ftjw fhf tpz zg gpj js shh vd gjk 3 2020 3 v rp rp 297 9 1 mk vjph nky kiwapl lhsuhy rkh g gpf fg gl l 10 04 1997 mk njjpaplg gl l tpz zg gk gjpntlhf kd dpiyg glj jg gl ls sj vd gjk kwj jiuf fg gltpy iy nkw go tpz zg gj jpy 1942 mk mz oy ele j bts isand btspnaw af fj jpd nghj mjhtj 1942 mk mz l mf l kjy 6 khj fsf fk nkyhf mth jiykiwthf ue jhh vd w 1 mk vjph nky kiwapl lhsh bjuptpj js shh mr rkaj jpy kjy tpz zg gj jld murplkpue j bgwg gl l gjpt u y yh rhd wpjh vd v mh rp kd dpiyg glj jg gltpy iy nkyk kjiu kjd ik epjpj jiw eltuhy rhd wspf fg gl l xu rhd wpjh kl lnk kd dpiyg glj jg gl lj 24 nky kiwapl lhsuf f mdg gg gl l kjyhtj tpz zg gk fwpg gpl l gupe jiunajkpd wp ue jj 2 mtj vjph nky kiwapl lhsuplkpue j mf fojj ijg bgw wjd ngupy 1 mk vjph nky kiwapl lhsupd nfhupf if guprpypf fg gl l epuhfupf fg gl lj mt t j jut wjpahfptpl ljhy mj vjph f fg gltpy iy me j epuhfupg g f fg gpwf rkhh 13 mz lfs fhpj j 1 mk vjph nky kiwapl lhsh bts isand btspnaw vd w af fj jpy g fbfhz ljw fhf 6 khj fsf fk nkyhf mtuj rpiwthrk mdgtpj jj fwpj j thjj jpd ngupy tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 29 08 2017 md w kpz lk xa t jpak nfhupa s shh 2 mtj kiwahf tpz zg gpf fg gl l tpz zg gkk gpw nrh f if gp 5 vd w gjpntlhf kd itf fg gl ls sj nkw go tpz zg gj jpy mth 6 khj fsf fk nkyhf mjhtj 05 01 1944 kjy 05 07 1947 tiuapy rpiwapy ue jjhf bjuptpj js shh j kjy tpz zg gj jpy fwpg gpl ls s fhyj jpypue j 10 bjspthf ntwglfpwj ke ija epuhfupg g wjpahfp 1 mk vjph nky kiwapl lhsuhy nfhupf ifapy twg gl ls s tptu fs kjypy fwpg gpl l tptu fsld khwgl oue jnghjpyk nky kiwapl lhsuf f mwptpg g mdg ghkyk vjpuhiza wjp mtzj ijj jhf fy bra a tha g gspf fhkyk fw wwpe j jdpakh epjpaurh xa t jpak th f mf fg g h tkhd cj jut gpwg gpj j kditj jph t bra js shh 1 mk vjph nky kiwapl lhsupd nfhupf if nky kiwapl lhsh murhy mwptpf fg gl l jpl lj jpd goahdjhfk nfhuupikahsh xu tpljiyg nghuhl l tpuuhf rpiwr brd wij cwjpg glj jk rpy mtz fisj jhf fy bra a jpl lk gupe jiuf fpwj 25 1 mk vjpu nky kiwapl lhsuhy jhf fy bra ag gl l mtzr rhd w jpl lj jpw f zf fkhf y iy vd gj nky kiwapl lhsupd thjkhfk j guprpypg gjw f jfjpahd mjpfhhpaplk tplg glntz oa xu thf fhfk 1 mk vjph nky kiwapl lhshpd tpz zg gk vw bfdnt 1997 mk mz oy epuhfhpf fg gl ls snghj mj jifa epuhfhpg g miz wjpahdjhfptpl ljhy 1 mk vjph nky kiwapl lhsh xa t jpak bgwtjw fhf uz lhtj kiwahf kpz lk g jpa tpz zg gk thapyhf chpiknfhutjw f tha g gpy iy 1 mk vjph nky kiwapl lhsh jdj nfhhpf iff f chpa mtzj ij kw glj jthnuahdhy mth j jpl lj jpd gyd fsf f chpikbgwthh nghjkhd rhd wpidg bghwj jtiuapy e jj jpl lnk tpz zg gj jld nrh j j kw glj jg glntz oa mtz fisf fwpj j fwpg gplfpwj nfhuhpikahsh mog gil mk r fisg g h j jpbra fpwhuh y iyah vd gij muhantz oaj chpa mjpfhuikg gpd flikahfk epjpa kw ma t 11 mjpfhu fisr braywj jp chpa mjpfhuikg ghy tpz zg gk ghprpypf fg gltjw f kd ng cah epjpkd wk xa t jpak th ftjw fhd ve j cj jut fisa k gpwg gpj jpuf ff tlhj e j thf fpy kd djhf 1 mk vjph nky kiwapl lhshpd nfhhpf if vw bfdnt epuhfhpf fg gl l me j cj jut wjpahdjhfptpl lj vd gija k ftdj jpw bfhs sntz lk fw wwpe j jdpakh epjpauruhyk kw wk epjpah uhaj jhyk gpwg gpf fg gl l cj juit muha e j gpd dh xa t jpak th ftjw fhf 1 mk vjph nky kiwapl lhsuf f ghpfhuk th f bry yj jf f fhuz fs vjk mspf fg gltpy iy vd gj v fsila fuj jhfk 1 mk vjph nky kiwapl lhsh nky kiwapl lhsh kw wk cah epjpkd wk kd ghf uz lhtj kiw tpz zg gj ijj jhf fy bra ifapy ke ija mizfis kd dpl l bra ag gl l ke ija epuhfhpg g fwpj j vjt k bjhptpf ftpy iy vdj bjhpfpwj 26 ve jbthu re jh g gj jpyk j jifa kf fpakhd cz ikr r fjpfsila gpur rpidfs ghprpyidf fhf vgk nghj cah epjpkd wk mwptpg g mdg ghkyk nky kiwapl lhsuhy mspf fg gl l fw wr rhl lfis kwf f vjpuhiza wjpahtzk jhf fy bra a k tha g gpid mspf fhkyk vjph nky kiwapl lhsuhy jhf fy bra ag gl l kdtpidj jph t bra jpuf ff tlhj nk t rje jpug nghuhl l tpuh fspd mikg g vjph a dpad m g e jpah kw wk gyh 1 vd w thf fpyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh2 vd w thf fpyk fw wwpe j tljy jiyik thf fiu uhy rhh t wg gl l e epjpkd wj jph g g iufs nky kiwapl lhshpd thjj jpw f mjutspf fk nk t rje jpu nghuhl l tpuh fspd mikg g vjph 12 a dpad m g e jpah kw wk gyh vd w thf fpy chpa fg tpz zg g fs njitg glk mtz fspd go cwjpbra ag gl ouf ftpy iy vd gijg ghprpypj j tpz zg gj ij epuhfhpj js sjhff fuj jiuj js snghj e j epjpkd wk jpy jiyaplkoahj vd wk mj jifa fhz kot fs kuzhdit vd nwh epahakw wit vd nwh twkoahj vd wk e epjpkd wk jph khdpj js sj 27 nkyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh 2 vd w thf fpy 1980 mk mz od tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph th fg glk xa t jpak mj jpl lj jpd fph njitg glk rhd wpd go xg gspf fg gl ls snjad wp ntbwe j kiwapyk my y vd w e epjpkd wk jph khdpj js sj nkw go jph g g iuapy e epjpkd wk cah epjpkd wj jhy gpwg gpf fg gl l cj juit khw wpaikj js sj 28 jw nghija thf fpy 1 mk vjph nky kiwapl lhsuhy 10 04 1997 md w rkh g gpf fg gl l tpz zg gk epuhfhpf fg gl l me j cj jut wjpahfptpl lj vd whyk mth kpz lk mnj nfhhpf ifa ld nky kiwapl lhsiu mqqfpdhh vd w fhuzj jpw fhf nky kiwapl lhsh ey ybjhu epiyg ghl il vlj js shh chpa mjpfhuikg g tpz zg gj ijg ghprpypg gjw f kd ng 1 mk vjph nky kiwapl lhsh epjpg nguhiz kdtpidj jhf fy bra jjd thapyhf cah epjpkd wj ij mqqfpdhh cah epjpkd wk kdit vw wf bfhz lnjhld wp mwptpg g vjkpd wpa k nky kiwapl lhsuf f vjpuhiza wjpahtzk jhf fy bra a k tha g gspf fhkyk mjidj jph t bra jj 13 29 eh fs epjpah uhaj jhy gpwg gpf fg gl l cj juita k muha e jpuf fpnwhk cah epjpkd w epjpah uhakk fw wwpe j jdpakh epjpaurhpd cj juit cwjpbra ifapy nky kiwapl lhsuhy vgg gg gl l gy ntw fhuz fisg ghprpypj jpuf ftpy iy 30 murhy thjplg gl lthw 1 mk vjph nky kiwapl lhsh jpl lj jpd go xa t jpak bgw wf bfhz ouf fpwhh vd gj cz ikahf ue jhyk mnjrkaj jpy 1980 mk mz l jpl lj jpd fph xa t jpaj ijf nfhu 1 mk vjph nky kiwapl lhsh njitg glk rhd wpid jpl lj jpd fph fwpg gplg gl lthw mspj jpuf fntz lk jpl lj jpd fph chpiknfhufpwnghj xa t jpak th ftjw fhd jfjpf fhpa mk rj ijj jpl lj jpy fwpg gpl lthw xuth epiwt bra jhyd wp tpz zg gjhuh vtuk mj jifa xa t jpa fis xh chpikrhh e j tplakhff nfhukoahj 31 vjph nky kiwapl lhsh epjpg nguhiz kdjhuuf fhf kd dpiyahd fw wwpe j thf fiu h rpwg g mdkjp kdit vlj j vlg gpnyna epuhfhpf ifapy e j epjpkd wj jhy gpwg gpf fg gl l cj jutpd kpjk nkyk e epjpkd wj jpd 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gl l 29 08 2018 mk njjpaplg gl l jph g g iu kw wk cj jutpd k yk js sgo bra jjhy kdf fiwa w w k nky kiwapl e jpa xd wpaj jhy jhf fy bra ag gl ls sj 3 epjpg nguhiz kditj jph t bra ifapy jpys s 1 mk vjph nky kiwapl lhsuhy jhf fy bra ag gl l ep ng k vk o vz 17290 2017 y gpwg gpf fg gl l 26 10 2017 mk njjpaplg gl l cj jutpd k yk tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 1 mk vjph nky kiwapl lhsuf f rje jpug nghuhl l tpuh fsf fhd xa t jpaj ij 2 th ft k t t j jut fpilf fg bgw w ehspypue j ehd f thu fhyj jpw fs cupa cj jut fs gpwg gpf ft k jpys s nky kiwapl lhsuf f cj jut fs gpwg gpf fg glfpd wd 4 fw wwpe j jdpakh epjpaurupd cj juthy kdf fiwa w w jpys s nky kiwapl lhsh cupikg gl laf tw 15 d fph epjpg nguhiz nky kiwapl ilj jhf fy bra jhh mj vjph g g f fs shd cj juthy js sgo bra ag glfpwj 5 fs s 1 mk vjph nky kiwapl lhsh 10 04 1997 md w tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph xa t jpak th ftjw fhf jdj kjy tpz zg gj ijr rkh g gpj jhh j 3 mtj vjph nky kiwapl lhsh k ykhf 2 mtj vjph nky kiwapl lhsuhy mdg gg gl lj 26 07 2001 md w nky kiwapl lhsuhy bgwg gl l nkw go fojj jpy tpz zg gk kiwahf g h j jp bra ag gltpy iy vd gjk rhd wpjh th feh fss xutuhy th fg gl l rhd wpjh bjsptw w ug gjhft k fz lwpag gl lj jpl lg go cupa mjpfhupaplkpue j bgwg glk gjpt u y yhr rhd wpjh vd v mh rp jhf fy bra ag gltpy iy 2 mtj vjph nky kiwapl lhsuhy cwjpahd gupe jiu vjk bra ag glhjjhy 10 04 1997 md w 1 mk vjph nky kiwapl lhsuhyhd tpz zg gk 27 02 2004 mk njjpaplg gl l mjd fojk k yk kjy nehf fpnyna nky kiwapl lhsuhy epuhfupf fg gl lj mjd gpwf rkhh 13 mz lfshf 1 mk vjph nky kiwapl lhsuhy ve j eltof ifa k vlf fg gl ouf ftpy iy mth bts isand btspnaw af fj jpd nghj 05 01 1944 ypue j 05 07 1944 tiuapykhf 6 khj fsf fk nkyhf rpiwapy ue jjhff twp 3 tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 2011 mk mz oypue j xa t jpak th fkhw fs s nky kiwapl lhsuf f kpz lk 29 08 2017 md w xu fojk mdg gpdhh 6 nkw go fojj jpw f mjhukhf mtz fs vjk y yhjjhy tje jpujh irdpf rk khd xa t jpaj jpl lg go njitg glk midj j tpjpkiwfisa k g h j jpbra j nfhupf if tpz zg gj ij mdg g khw 1 mk vjph nky kiwapl lhsuf f xu efyld 2 mk vjph nky kiwapl lhsuf f kftupapl l 27 10 2017 mk njjpaplg gl l xu fojj ij mdg gpdhh vd gj nky kiwapl lhsupd thjkhfk f fl lj jpy fs s 1 mk vjph nky kiwapl lhsh tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph rje jpug nghuhl l tpuh fsf fhd xa t jpaj ij th fkhw fs s nky kiwapl lhsuf f cj jutpl braywj jk epjpg nguhiz k ykhf gzpf ff twp bkl uh cah epjpkd wk kjiu mkh t kd ghf epjpg nguhiz kditj jhf fy bra js shh 7 kdtpys s rhl liufis kwjypf f vjpuhiza wjp mtzj ij jhf fy bra a tha g g vjk mspf fhkyk mwptpg g vjk mspf fhkyk epjpg nguhiz kd nfl fg gl l 26 10 2017 mk njjpaplg gl l cj jut k yk jph t bra ag gl lj vd gj nky kiwapl lhsupd thjkhfk 8 vw gspf fg bgw w rhd wpjh th feuhy th fg gl l rhd wpjh xa t jpak th ftjw f nghjkhdj vd w fhz koitg gjpt bra j 1 mk vjph nky kiwapl lhsuhy mdg gg gl l rpy foj fisf fwpg gpl l fw wwpe j jdpakh epjpaurh tje jpujh irdpf rk khd xa t jpaj jpl lj jpd 4 fph 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nky kiwapl oy brhy yg gl ls s rhl liufisg bghwj jtiuapy e jpa rje jpug nghuhl lj jpy tpukld g bflj jf bfhz l mth rpiwthrk 1944 mk mz oy 6 khj fs rpiwj jz lid mdgtpj jj kl lkpd wp mdgtpj jj cl gl gy hg g fisa k d dy fisa k mile jhh vd w bjuptpf fg gl ls sj nkyk mth jlg g f fhty mizfisa k 5 vjph bfhz l 1942 mk mz oy 1942 mf l kjy 1943 ork gh tiu xuhz lf fk nkyhf jiykiwthf ue jhh 11 nkyk mth bts isand btspnaw af fj jpy jptpukhfg g nfw wjhyk mtuj g nfw gpd fhuzkhf mth jz of fg gl l 05 01 1944 kjy 05 07 1944 tiu mw khj fsf fk nkyhf mypg g uk kj jpa rpiwapy milf fg gl lhh vd wk bjuptpf fg gl ls sj 12 1997 mk mz oy rkh g gpf fg gl l mtuj kjy tpz zg gj ijf fwpg gplifapy mtuhy rkh g gpf fg gl l mt tpz zg gk nky kiwapl lhsuhy cupa ftdj jld guprpypf fg gltpy iy vd wk nky kiwapl lhsh 1 mk vjph nky kiwapl lhshpd tpz zg gj ijg guprpypf ifapy mrl il kdg ghd ikahd mqqfkiwa ld ele jbfhz lhh vd wk rhl liuf fg gl ls sj mtuj ke ija epuhfupg igf fwpg gplifapy mtuj kjy tpz zg gj jpd ngupy kjy nky kiwapl 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epjpkd wj jpd fw wwpe j jdpakh epjpaurh kdtpidj jpu t bra js shh vd w e jpa xd wpaj jpw fhf kd dpiyahd fw wwpe j tljy jiyik thf fiu uhy thjplg gl ls sj e jpa murikg g r rl lj jpd tfkiwf tw 226 d fph epjpa kw ma t mjpfhu fisr braywj jk tifapy cah epjpkd wk xa t jpak th ftjw fhd mf fg g h tkhd cj jut fisg gpwg gpf f fhy jtwpihj j tpl lj vd w gzpe jiuf fg gl ls sj 16 xa t jpak rpy epge jidfsld th ftjw fhd jpl lk jahupf fg gl ls snghj me j epge jidfisg g h j jpbra jpug gj fwpj j cupa mjpfhupahy ma t bra ag gl lhyd wp xa t jpak th fg gzpj j cj jut fs vjk gpwg gpf fg gl ouf ff tlhj vd w rkh g gpf fg gl ls sj 17 kjy goahf 1 mk vjph nky kiwapl lhsh 1997 mk mz oy xa t jpaj ij th ftjw fhf tpz zg gpj js shh vd wk mj fwpg gpl l 7 gupe jiufs vjk y yhky 3 mk vjph nky kiwapl lhsh k ykhf 2 mk vjph nky kiwapl lhsuf f mdg gg gl lj vd wk gy mz lfs fhpe jgpwf mj epuhfupf fg gl ltpl lj vd wk kpz lk xa t jpak th ftjw fhf tpz zg gpf fg gl ls sj mj cupa mjpfhupahy guprpypf fg gltjw f kd ghfnt 1 mk vjph nky 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fhf 6 khj fsf fk nkyhf mtuj rpiwthrk mdgtpj jj fwpj j thjj jpd ngupy tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 29 08 2017 md w kpz lk xa t jpak nfhupa s shh 2 mtj kiwahf tpz zg gpf fg gl l tpz zg gkk gpw nrh f if gp 5 vd w gjpntlhf kd itf fg gl ls sj nkw go tpz zg gj jpy mth 6 khj fsf fk nkyhf mjhtj 05 01 1944 kjy 05 07 1947 tiuapy rpiwapy ue jjhf bjuptpj js shh j kjy tpz zg gj jpy fwpg gpl ls s fhyj jpypue j 10 bjspthf ntwglfpwj ke ija epuhfupg g wjpahfp 1 mk vjph nky kiwapl lhsuhy nfhupf ifapy twg gl ls s tptu fs kjypy fwpg gpl l tptu fsld khwgl oue jnghjpyk nky kiwapl lhsuf f mwptpg g mdg ghkyk vjpuhiza wjp mtzj ijj jhf fy bra a tha g gspf fhkyk fw wwpe j jdpakh epjpaurh xa t jpak th f mf fg g h tkhd cj jut gpwg gpj j kditj jph t bra js shh 1 mk vjph nky kiwapl lhsupd nfhupf if nky kiwapl lhsh murhy mwptpf fg gl l jpl lj jpd goahdjhfk nfhuupikahsh xu tpljiyg nghuhl l tpuuhf rpiwr brd wij cwjpg glj jk rpy mtz fisj jhf fy bra a jpl lk gupe jiuf fpwj 25 1 mk vjpu nky kiwapl 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kiwapl lhsh 1 2004 7 v rp rp 716 2 2004 7 v rp rp 722 8 tpljiyg nghuhl lj jpy g bflj j bts isnand btspnaw af fj jpd nghj mth rpiwthrkk hg g fis re jpj jnjhl jahupf fg gl l jpl lj jpd go mtuf f cupj jhd xa t jpaj ij neh ikaw w kiwapy he jtpl ljhf thjiuj js shh 21 rpwg g mdkjp kd c vz 11132 2019 thf f fwpg ngl vz 2923 2019 y gpwg gpf fg gl l 26 04 2019 mk njjpaplg gl l cj jut f f v fsj ftdj ij h j j njnghd wbjhu kd e epjpkd wj jhy vw bfdnt js sgo bra ag gl ls sj vd w gzpe jiuf fg gl ls sj nkyk fw wwpe j thf fiu h a dpad m g e jpah vjph rpjhfhe j v jghc p kw wk xuth 3 vd w thf fpy e epjpkd wj jpd jph g g iuapd kpj rhh t w w cah epjpkd wj jhy gpwg gpf fg gl l vjph g g f fs shd cj jutpy rl lkiwnfl vjk y iybad wk mjpy jiyaplf fhuz fs vjk y iybad wk thjpl ls shh 22 nkyk vw bfdnt jhf fy bra ag gl ls s mtz fs tje jpujh irdpf rk khd xa t jpaj jpl lj jpd go xa t jpak th ftjw f nghjkhdit vd wk xa t jpak th ftjw fhd mtuj tpz zg gj ij nky kiwapl lhsh guprpypf fhjjhy cah epjpkd w fw wwpe j jdpakh epjpaurh xa t jpak th ftjw fhd cj jut fisr rupahfnt gpwg gpj js shh vd wk mjpy jiyapl fhuz fs vjk y iybad wk gzpe jiuf fg gl ls sj 23 kjyhtjhf fs s 1 mk vjph nky kiwapl lhsh 1997 mk mz oy xa t jpak th ftjw fhf tpz zg gpj js shh vd gjk 3 2020 3 v rp rp 297 9 1 mk vjph nky kiwapl lhsuhy rkh g gpf fg gl l 10 04 1997 mk njjpaplg gl l tpz zg gk gjpntlhf kd dpiyg glj jg gl ls sj vd gjk kwj jiuf fg gltpy iy nkw go tpz zg gj jpy 1942 mk mz oy ele j bts isand btspnaw af fj jpd nghj mjhtj 1942 mk mz l mf l kjy 6 khj fsf fk nkyhf mth jiykiwthf ue jhh vd w 1 mk vjph nky kiwapl lhsh bjuptpj js shh mr rkaj jpy kjy tpz zg gj jld murplkpue j bgwg gl l gjpt u y yh rhd wpjh vd v mh rp kd dpiyg glj jg gltpy iy nkyk kjiu kjd ik epjpj jiw eltuhy rhd wspf fg gl l xu rhd wpjh kl lnk kd dpiyg glj jg gl lj 24 nky kiwapl lhsuf f mdg gg gl l kjyhtj tpz zg gk fwpg gpl l gupe jiunajkpd wp ue jj 2 mtj vjph nky kiwapl lhsuplkpue j mf fojj ijg bgw wjd ngupy 1 mk vjph nky kiwapl lhsupd nfhupf if guprpypf fg gl l epuhfupf fg gl lj mt t j jut wjpahfptpl ljhy mj vjph f fg gltpy iy me j epuhfupg g f fg gpwf rkhh 13 mz lfs fhpj j 1 mk vjph nky kiwapl lhsh bts isand btspnaw vd w af fj jpy g fbfhz ljw fhf 6 khj fsf fk nkyhf mtuj rpiwthrk mdgtpj jj fwpj j thjj jpd ngupy tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph 29 08 2017 md w kpz lk xa t jpak nfhupa s shh 2 mtj kiwahf tpz zg gpf fg gl l tpz zg gkk gpw nrh f if gp 5 vd w gjpntlhf kd itf fg gl ls sj nkw go tpz zg gj jpy mth 6 khj fsf fk nkyhf mjhtj 05 01 1944 kjy 05 07 1947 tiuapy rpiwapy ue jjhf bjuptpj js shh j kjy tpz zg gj jpy fwpg gpl ls s fhyj jpypue j 10 bjspthf ntwglfpwj ke ija epuhfupg g wjpahfp 1 mk vjph nky kiwapl lhsuhy nfhupf ifapy twg gl ls s tptu fs kjypy fwpg gpl l tptu fsld khwgl oue jnghjpyk nky kiwapl lhsuf f mwptpg g mdg ghkyk vjpuhiza wjp mtzj ijj jhf fy bra a tha g gspf fhkyk fw wwpe j jdpakh epjpaurh xa t jpak th f mf fg g h tkhd cj jut gpwg gpj j kditj jph t bra js shh 1 mk vjph nky kiwapl lhsupd nfhupf if nky kiwapl lhsh 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tpuh fspd mikg g vjph a dpad m g e jpah kw wk gyh 1 vd w thf fpyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh2 vd w thf fpyk fw wwpe j tljy jiyik thf fiu uhy rhh t wg gl l e epjpkd wj jph g g iufs nky kiwapl lhshpd thjj jpw f mjutspf fk nk t rje jpu nghuhl l tpuh fspd mikg g vjph 12 a dpad m g e jpah kw wk gyh vd w thf fpy chpa fg tpz zg g fs njitg glk mtz fspd go cwjpbra ag gl ouf ftpy iy vd gijg ghprpypj j tpz zg gj ij epuhfhpj js sjhff fuj jiuj js snghj e j epjpkd wk jpy jiyaplkoahj vd wk mj jifa fhz kot fs kuzhdit vd nwh epahakw wit vd nwh twkoahj vd wk e epjpkd wk jph khdpj js sj 27 nkyk a dpad m g e jpah vjph gpfhc mh bgskpf kw wk gyh 2 vd w thf fpy 1980 mk mz od tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph th fg glk xa t jpak mj jpl lj jpd fph njitg glk rhd wpd go xg gspf fg gl ls snjad wp ntbwe j kiwapyk my y vd w e epjpkd wk jph khdpj js sj nkw go jph g g iuapy e epjpkd wk cah epjpkd wj jhy gpwg gpf fg gl l cj juit khw wpaikj js sj 28 jw nghija thf fpy 1 mk vjph nky kiwapl lhsuhy 10 04 1997 md w rkh g gpf fg gl l tpz zg gk epuhfhpf fg gl l me j cj jut wjpahfptpl lj vd whyk mth kpz lk mnj nfhhpf ifa ld nky kiwapl lhsiu mqqfpdhh vd w fhuzj jpw fhf nky kiwapl lhsh ey ybjhu epiyg ghl il vlj js shh chpa mjpfhuikg g tpz zg gj ijg ghprpypg gjw f kd ng 1 mk vjph nky kiwapl lhsh epjpg nguhiz kdtpidj jhf fy bra jjd thapyhf cah epjpkd wj ij mqqfpdhh cah epjpkd wk kdit vw wf bfhz lnjhld wp mwptpg g vjkpd wpa k nky kiwapl lhsuf f vjpuhiza wjpahtzk jhf fy bra a k tha g gspf fhkyk mjidj jph t bra jj 13 29 eh fs epjpah uhaj jhy gpwg gpf fg gl l cj juita k muha e jpuf fpnwhk cah epjpkd w epjpah uhakk fw wwpe j jdpakh epjpaurhpd cj juit cwjpbra ifapy nky kiwapl lhsuhy vgg gg gl l gy ntw fhuz fisg ghprpypj jpuf ftpy iy 30 murhy thjplg gl lthw 1 mk vjph nky kiwapl lhsh jpl lj jpd go xa t jpak bgw wf bfhz ouf fpwhh vd gj cz ikahf ue jhyk mnjrkaj jpy 1980 mk mz l jpl lj jpd fph xa t jpaj ijf nfhu 1 mk vjph nky kiwapl lhsh njitg glk rhd wpid jpl lj jpd fph fwpg gplg gl lthw mspj jpuf fntz lk jpl lj jpd fph chpiknfhufpwnghj xa t jpak th ftjw fhd jfjpf fhpa mk rj ijj jpl lj jpy fwpg gpl lthw xuth epiwt bra jhyd wp tpz zg gjhuh vtuk mj jifa xa t jpa fis xh chpikrhh e j tplakhff nfhukoahj 31 vjph nky kiwapl lhsh epjpg nguhiz kdjhuuf fhf kd dpiyahd fw wwpe j thf fiu h rpwg g mdkjp kdit vlj j vlg gpnyna epuhfhpf ifapy e j epjpkd wj jhy gpwg gpf fg gl l cj jutpd kpjk nkyk e epjpkd wj jpd jph g ig a dpad m g e jpah vjph rpjhfhe j v jghc p kw wk xuth 3 vd w thf fpy e j epjpkd wj jpd jph g g iu kpjk rhh t w wpue jnghjpyk e epjpkd wj jhy gpwg gpf fg gl l cj jut k nkyk a dpad m g e jpah vjph rpjhfhe j v jghc p kw wk xuth vd w thf fpd jph g g iua k mtuj nfhhpf iff f mjuthf vjk cjtp g hpahj xu fwpg gpl l tpz zg gjhuh 1980 mk mz l tje jpujh irdpf rk khd xa t jpaj jpl lj jpd fph xa t jpak bgw chpikahdtuh vd gj xt bthu 14 thf fpd r fjpfisa k kd dpiyg glj jg gl l mtzr rhd wfisa k fuj jpw bfhz l ghprpypf fg glntz oa xu tplakhfk mt tifapy fw wwpe j thf fiu uhy rhh t wg 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ą“ą“Ŗą“ą“ ą“Øą“¤ ą“ą“ą“¤ ą“¤ą“£ą“¤ ą“£ą“ø ą“ą“Øą“Øą“Ø ą“
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ą“§ą“¤ ą“ą“ ą“°ą“ą“³ ą“µą“¤ ą“Øą“¤ ą“ą“Æą“ ą“ą“¤ ą“ą“Ŗą“ą“ ą“£ą“ø lxi of 1951 ą“ą“ą“Ø ą“ą“µą“£ ą“Ŗą“®ą“Ø ą“± ą“ø ą“¬ą“Ø ą“§ą“Ŗą“Ŗą“ ą“ ą“øą“Ŗ ą“° ą“øą“ ą“Øą“ą“³ą“¤ ą“Ŗą“² ą“ą“µą“£ ą“Ŗą“®ą“Ø ą“± ą“ą“³ ą“®ą“ ą“Æą“¤ ą“ ą“ą“¤ ą“Æą“ ą“ą“² ą“ ą“ą“¤ ą“ ą“ ą“ą“¶ą“·ą“Ŗ ą“° ą“ą“Øą“¤ ą“Ŗą“±ą“Æ ą“Ø ą“Ø ą“ą“ ą“ą“ą“³ ą“ą“£ą“ ą“ ą“ ą“Ø ą“Ø xxx xxx xxx 2 ą“Øą“¤ ą“°ą“µą“ą“Øą“ą“³ ą“ ą“ą“ ą“ą“ą“³ą“¤ ą“² ą“øą“Ø ą“¦ą“°ą“ą“Ŗ ą“° ą“®ą“± ą“± ą“µą“¤ ą“§ą“¤ ą“¤ą“¤ ą“² ą“ą“µą“¶ą“Øą“Ŗą“Ŗą“ą“ ą“¤ ą“¤ą“Ŗą“ą“Ŗ ą“° ą“ ą“ą“ą“”ą“° ą“ą“«ą“¤ ą“øą“° ą“ą“Ø ą“Øą“ ą“² ą“ą“Øą“Øą“Ø ą“
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ą“Ŗ ą“° ą“ą“¬ą“² ą“Ŗ ą“° ą“Øą“¤ ą“°ą“£ą“Æą“¤ ą“ą“² ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 1955 ą“Ŗą“Ø ą“± ą“Ŗą“·ą“”ą“¬ ą“Æ ą“³ą“¤ ą“² ą“ą“ą“°ą“ ą“ą“ą“”ą“±ą“¤ ą“Ŗą“Ø ą“± ą“Æ ą“Ŗ ą“° 8 ą“ą“Øą“Ŗ ą“° 1 ą“Øą“ø ą“ą“¤ ą““ą“¤ ą“² ą“µą“Øą“ ą“¤ą“®ą“ ą“ą“¤ ą“Æ ą“ą“Ŗą“¤ą“ą“¤ ą“² ą“Ŗ ą“° ą“¤ą“øą“¤ ą“ą“Ŗą“Æ ą“
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ą“”ą“¤ ą“Øą“¤ ą“øą“ø ą“ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“®ą“Ø ą“± ą“ø ą“± ą“³ą“øą“ø 19549 ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“·ą“Ø ą“øą“°ą“µą“¤ ą“øą“ø ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 195510 ą“¤ą“ ą“Ŗą““ ą“µą“ ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“Ŗą“ą“ ą“°ą“®ą“ ą“£ą“ø ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø ą“± ą“³ą“øą“ø 1954 1951 ą“Ŗą“² ą“ą“³ ą“ą“Øą“Ø ą“øą“°ą“µą“¤ ą“øą“øą“ø ą“ą“ą“¤ ą“Ŗą“² lxi ą“Ŗą“² 1951 3 ą“ą“Ŗ ą“° ą“µą“ ą“Ŗą“¤ ą“Ŗą“Ø ą“± ą“ą“Ŗą“µą“ ą“Ŗą“ø 1 ą“Øą“² ą“ ą“Ø ą“Ø ą“
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ą“Ŗą“²ą“ą“¤ ą“² ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ą“ą“ ą“Æą“¤ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“Ŗ ą“° ą“Ŗą“ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą““ą“¤ ą“µ ą“ą“³ą“¤ ą“ą“² ą“ą“ø ą“Øą“¤ ą“Æą“®ą“¤ ą“ą“ ą“Ŗ ą“° ą“µą“¤ ą“¶ą“¦ą“¤ ą“ą“°ą“£ ą“ ą“±ą“¤ ą“Ŗą“ø 1994 ą“® ą“¤ą“² ą“ ą“£ą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“¤ ą“Øą“ ą“Æą“¤ ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ ą“Ŗą“ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“¤ ą“¤ą“¤ ą“Ø ą“³ ą“³ ą“µą“Øą“µą“øą“ą“³ ą“ą“°ą“Ŗ ą“° ą“ą“¤ ą“ ą“ą“¤ą“ø ą“
ą“¤ą“¤ ą“Øą“ ą“² 1994 ą“ą“Ø ą“µą“°ą“¤ 1 ą“® ą“¤ą“² ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ą“ ą“Ø ą“Øą“¤ ą“°ą“ą“¦ ą“¦ ą“¶ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ ą“Ø ą“Øą“¤ą“¤ ą“² ą“Ŗą“ 11 ą“ą“Ŗą“°ą“Æ ą“Ŗ ą“° ą“Ŗą“¤ą“¤ ą“ ą“² ą“®ą“ ą“Æą“¤ ą“¬ą“ ą“§ą“¤ ą“ ą“ ą“Ø ą“Øą“¤ ą“Ŗą“²ą“Ø ą“Øą“ø ą“øą“ ą“ą“Øą“Ŗą“Ŗą“ ą“¤ ą“¤ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 1955 ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“Ŗą“Ø ą“± ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø ą“ą“ ą“ą“ą“³ 1954 ą“ą“ ą“ą“Ŗ ą“° 7 ą“
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ą“¤ą“ ą“Æą“¤ą“ø xxx xxx xxx 7 ą“µą“¤ ą“ą“Æą“¤ ą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“³ ą“Ŗą“ ą“Ŗą“ ą“ą“¤ ą“ 1 ą“øą“¬ą“ø ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø 2 ą“µą“Øą“µą“øą“Æą“ø ą“µą“¤ ą“ą“§ą“Æą“®ą“ ą“Æą“¤ ą“ą“®ą“¤ ą“·ą“Ø ą“Øą“¤ ą“°ą“£ ą“£ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“
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ą“ą“ ą“ ą“£ą“øą“ø ą“ø ą“øą“°ą“µą“¤ ą“ø ą“®ą“ ą“Æą“¤ ą“¬ą“Ø ą“§ą“Ŗą“Ŗą“ ą“ą“ø ą“ą“£ ą“ą“ ą“° ą“ ą“³ą“° ą“ą“Ø ą“”ą“ø ą“ą“”ą“¤ ą“±ą“° ą“ą“Øą“±ą“² ą“¤ ą“Ŗą“Ø ą“± ą“Æ ą“Ŗ ą“° ą“øą“®ą“¤ą“ą“¤ ą“¤ą“ ą“Ŗą“ ą“Ŗą“Ŗą“ ą“¤ ą“
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ą“Ø ą“µą“¦ą“Øą“¤ ą“Æą“®ą“ ą“Æ ą“ą“³ą“µ ą“ą“³ ą“
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ą“µą“° ą“Ŗą“ ą“ą“Æą“ ą“ą“Øą“¤ą“Ŗą“Æ ą“
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ą“Ø ą“øą“°ą“¤ ą“ ą“ą“ø ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“
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ą“ą“Ŗą“Ø ą“øą“¤ ą“ą“øą“ø ą“ 2006 ą“Ŗą“Ø ą“± ą“
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ą“Ŗą“²ą“ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ą“¤ ą“¤ą“¤ ą“² ą“
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ą“ą“¤ ą“øą“ ą“Øą“¤ ą“¤ą“¤ ą“² ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“¤ ą“¤ą“¤ ą“Øą“ø ą“ą“Æą“ ą“ą“Øą“°ą“ ą“Æą“ ą“² ą“øą“Ŗ ą“° ą“µą“°ą“£ą“¤ ą“¤ą“¤ ą“Ŗą“Ø ą“± ą“ą“Ø ą“ ą“² ą“Øą“®ą“¤ ą“²ą“ ą“Ŗą“¤ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“®ą“¤ ą“²ą“ ą“¤ ą“¤ ą“ą““ą“¤ ą“µ ą“ą“³ą“¤ ą“² ą“Øą“¤ ą“Æą“®ą“¤ ą“ą“ą“£ą“¤ą“ ą“£ą“ø ą“ą“Ø ą“Øą“² ą“Øą“² ą“ą“Ŗą“Ŗą“ ą“ą“¤ą“ø 7 4 ą“ą“°ą“£ą“¤ ą“¤ą“¤ ą“Ŗą“Ø ą“± ą“ą“ ą“°ą“Øą“ą“®ą“¤ ą“Øą“¤ ą“² ą“Øą“¤ ą“± ą“¤ ą“¤ ą“Ø ą“Øą“¤ą“ø ą“ą“£ą“ą“¤ ą“Ŗą“² ą“ ą“¤ ą“¤ą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“¤ ą“¤ą“¤ ą“Øą“ø ą“
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ą“Ŗą“²ą“ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ ą“ ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ą“¤ ą“² ą“Ŗą“Ŗą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“Ŗą“³ ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“Ŗą“ ą“ą“¤ ą“ą“ą“ ą“¤ą“¤ ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ą“ą“ ą“° ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ą“ą“ ą“Æą“¤ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“Ŗ ą“° ą“Ŗą“ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą““ą“¤ ą“µ ą“ą“³ą“¤ ą“ą“² ą“ą“ø ą“Øą“¤ ą“Æą“®ą“¤ ą“ą“ ą“Ŗ ą“° ą“µą“¤ ą“¶ą“¦ą“¤ ą“ą“°ą“£ ą“ ą“±ą“¤ ą“Ŗą“ø 1994 ą“® ą“¤ą“² ą“ ą“£ą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“¤ ą“Øą“ ą“Æą“¤ ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ ą“Ŗą“ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“¤ ą“¤ą“¤ ą“Ø ą“³ ą“³ ą“µą“Øą“µą“øą“ą“³ ą“ą“°ą“Ŗ ą“° ą“ą“¤ ą“ ą“ą“¤ą“ø ą“
ą“¤ą“¤ ą“Øą“ ą“² 1994 ą“ą“Ø ą“µą“°ą“¤ 1 ą“® ą“¤ą“² ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ą“ ą“Ø ą“Øą“¤ ą“°ą“ą“¦ ą“¦ ą“¶ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ ą“Ø ą“Øą“¤ą“¤ ą“² ą“Ŗą“ 11 ą“ą“Ŗą“°ą“Æ ą“Ŗ ą“° ą“Ŗą“¤ą“¤ ą“ ą“² ą“®ą“ ą“Æą“¤ ą“¬ą“ ą“§ą“¤ ą“ ą“ ą“Ø ą“Øą“¤ ą“Ŗą“²ą“Ø ą“Øą“ø ą“øą“ ą“ą“Øą“Ŗą“Ŗą“ ą“¤ ą“¤ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 1955 ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“Ŗą“Ø ą“± ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø ą“ą“ ą“ą“ą“³ 1954 ą“ą“ ą“ą“Ŗ ą“° 7 ą“
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ą“¤ą“ ą“Æą“¤ą“ø xxx xxx xxx 7 ą“µą“¤ ą“ą“Æą“¤ ą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“³ ą“Ŗą“ ą“Ŗą“ ą“ą“¤ ą“ 1 ą“øą“¬ą“ø ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø 2 ą“µą“Øą“µą“øą“Æą“ø ą“µą“¤ ą“ą“§ą“Æą“®ą“ ą“Æą“¤ ą“ą“®ą“¤ ą“·ą“Ø ą“Øą“¤ ą“°ą“£ ą“£ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2002 ą“² 85 ą“ą“«ą“¤ ą“øą“°ą“®ą“ ą“Ŗą“° ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“ą“Æą“ ą“Ø ą“øą“ ą“§ą“¤ ą“ą“¤ ą“Ŗą“²ą“Ø ą“Øą“ø ą“ą“®ą“¤ ą“·ą“Ø ą“
ą“±ą“¤ ą“Æą“¤ ą“ ą“
ą“¤ą“¤ ą“Øą“ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2002 12ą“ ą“° ą“ą“¤ ą“¤ą“¤ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2002 24 ą“² 70 ą“ą“«ą“¤ ą“øą“°ą“®ą“ ą“Ŗą“° ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“ą“Æą“ ą“Ø ą“Ŗ ą“° ą“¬ą“ ą“ą“¤ ą“Æ ą“³ ą“³ 15 ą“ą““ą“¤ ą“µ ą“ą“³ ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2006 ą“Ŗą“² ą“ą““ą“¤ ą“µ ą“ą“³ ą“Ŗą“ ą“Æą“„ą“ ą“°ą“¤ ą“ą“µą“¶ą“Øą“ą“¤ 89 ą“ą“Æą“¤ 85 4 13 ą“
ą“ą“² ą“ ą“ ą“ą“ø ą“Ŗą“®ą“Ø ą“± ą“¤ ą“Øą“ø ą“² ą“ą“Øą“®ą“ ą“Æ 89 ą“¤ą“øą“¤ ą“ą“ą“³ą“¤ ą“² 108 ą“¤ą“øą“¤ ą“ą“ą“³ą“ą“ ą“Æą“¤ ą“øą“Ŗ ą“° ą“øą“ ą“Øą“ą“³ ą“
ą“ą“Ŗą“ą“¤ ą“ 2 ą“ą“ą“¦ą“Øą“ ą“ą“øą“Ŗą“° ą“
ą“Ø ą“µą“¦ą“¤ ą“ ą“ą“¤ą“¤ ą“² 7 ą“® ą“¤ą“² 14 ą“µą“Ŗą“° ą“ą“ą“¦ą“Øą“ ą“ą“øą“Ŗą“°ą“Æą“ ą“£ą“ø ą“ą“ą“°ą“³ą“Ŗ ą“° ą“ą“µą“¶ą“Øą“Ŗą“Ŗą“ ą“ą“¤ą“ø 24 09 2018 ą“Øą“ø ą“ ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ą“² ą“Æ ą“£ą“¤ ą“Æą“Øą“ø ą“ą“µą“£ą“¤ ą“Ŗą“ą“°ą“¤ ą“Ŗą“¤ ą“ ą“ ą“² ą“ ą“ ą“±ą“¤ ą“Ŗą“¤ ą“² ą“°ą“ ą“ą“Øą“¤ ą“¤ą“ø ą“ą“Ŗą“ą“Æ ą“³ ą“³ą“¤ą“ø 595 ą“ą“¤ ą“²ą“ą“³ą“ ą“Ŗą“£ą“Ø ą“Ø ą“Ŗ ą“° ą“øą“¤ ą“ą“øą“ø ą“ 2006 ą“ą“² ą“ ą“ ą“³ ą“³ ą“ą““ą“¤ ą“µ ą“ą“³ ą“µą“¤ ą“¤ą“°ą“£ą“Ŗ ą“° ą“Ŗą“ą“Æ ą“Æ ą“ą“® ą“Ŗą“ ą“³ ą“ą“ą“°ą“³ą“¤ ą“¤ą“¤ ą“² 14 ą“ą“¤ ą“²ą“ą“³ą“ ą“£ ą“£ą“ ą“Æą“¤ ą“° ą“Ø ą“Øą“Ŗą“¤ą“Ø ą“Ø ą“ø ą“ą“¤ ą“Ŗą“¤ ą“ ą“ą“¤ ą“° ą“Ø ą“Ø ą“
ą“¤ą“¤ ą“Øą“ ą“² ą“ą“ą“°ą“³ą“¤ ą“¤ą“¤ ą“Ŗą“² ą“ą““ą“¤ ą“µ ą“ą“³ 14 595 89 2 09 2 ą“ą“Ø ą“Øą“ø ą“±ą“ ą“ ą“£ą“ø ą“ą“«ą“ø ą“Ŗą“ą“Æ ą“¤ ą“ą“Æą“¤ ą“Øą“¤ ą“°ą“£ ą“£ą“Æą“¤ ą“ 31 10 2018 ą“Øą“ø ą“Æ ą“£ą“¤ ą“Æą“Ø ą“øą“®ą“°ą“Ŗą“¤ ą“ ą“ ą“
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ą“ą“Ŗą“ą“ą“Æ ą“Ŗą“ ą“ą“ ą“°ą“Øą“¤ ą“¤ą“¤ ą“² ą“
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ą“Ø ą“µą“¦ą“Øą“¤ ą“Æą“®ą“ ą“Æ ą“ą“³ą“µ ą“ą“³ ą“
ą“µą“° ą“Ŗą“ą“Æą“ ą“ą“Øą“Ŗą“Ŗą“ ą“¤ ą“¤ą“¤ ą“Æą“¤ ą“° ą“Ø ą“Øą“¤ ą“² 15 ą“ ą“µą“ø ą“¤ ą“¤ą“ ą“Ŗą“¶ ą“ą“ ą“¤ ą“¤ą“² ą“¤ ą“¤ą“¤ ą“Ŗą“Ø ą“± ą“Ŗą“µą“³ą“¤ ą“ ą“ą“¤ ą“¤ą“¤ ą“² ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“®ą“Ø ą“± ą“ø ą“ą“ ą“ą“ą“³ą“¤ ą“Ŗą“² ą“ą“ ą“ą“Ŗ ą“° 7 3 ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“øą“ø ą“øą“¤ ą“ą“øą“ø ą“ą“¤ ą“
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ą“µą“° ą“Ŗą“ ą“ą“Æą“ ą“ą“Øą“¤ą“Ŗą“Æ ą“
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ą“Ø ą“øą“°ą“¤ ą“ ą“ą“ø ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“
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ą“Ø ą“µą“¦ą“¤ ą“ ą“ą“¤ ą“° ą“Ø ą“Ø 27 ą“
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ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“·ą“Ø ą“øą“°ą“µą“¤ ą“øą“ø ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 195510 ą“¤ą“ ą“Ŗą““ ą“µą“ ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“Ŗą“ą“ ą“°ą“®ą“ ą“£ą“ø ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø ą“± ą“³ą“øą“ø 1954 1951 ą“Ŗą“² ą“ą“³ ą“ą“Øą“Ø ą“øą“°ą“µą“¤ ą“øą“øą“ø ą“ą“ą“¤ ą“Ŗą“² lxi ą“Ŗą“² 1951 3 ą“ą“Ŗ ą“° ą“µą“ ą“Ŗą“¤ ą“Ŗą“Ø ą“± ą“ą“Ŗą“µą“ ą“Ŗą“ø 1 ą“Øą“² ą“ ą“Ø ą“Ø ą“
ą“§ą“¤ ą“ą“ ą“°ą“ą“³ ą“µą“¤ ą“Øą“¤ ą“ą“Æą“ ą“ą“¤ ą“ ą“ą“ø ą“ą“ą“Ø ą“ą“µą“£ ą“Ŗą“®ą“Ø ą“± ą“ø ą“¬ą“Ø ą“§ą“Ŗą“Ŗą“ ą“ ą“øą“Ŗ ą“° ą“øą“ ą“Øą“ą“³ą“¤ ą“Ŗą“² ą“øą“°ą“ą“ ą“° ą“®ą“ ą“Æą“¤ ą“ ą“ą“¤ ą“Æą“ ą“ą“² ą“ ą“ą“¤ ą“ ą“ 9 ą“ ą“° ą“ą“¤ ą“¤ą“¤ ą“² ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“®ą“Ø ą“± ą“ø ą“Øą“¤ ą“Æą“®ą“ą“³ 10 ą“ ą“° ą“ą“¤ ą“¤ą“¤ ą“² ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ą“ ą“ą“ ą“ą“ą“³ 9 ą“ą“¶ą“·ą“Ŗ ą“° ą“ą“¤ą“¤ ą“Øą“ ą“² ą“ą“Øą“¤ ą“Ŗą“±ą“Æ ą“Ø ą“Ø ą“Øą“¤ ą“Æą“®ą“ą“³ ą“ą“£ą“ ą“ ą“ ą“Ø ą“Ø ą“
ą“¤ą“ ą“Æą“¤ą“ø xxx xxx xxx 7 ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø 7 1 ą“ą“ą“Ø ą“øą“°ą“ą“ ą“° ą“ą“®ą“¤ ą“·ą“Ø ą“®ą“ ą“Æą“¤ ą“ ą“ą“¤ ą“Æą“ ą“ą“² ą“ ą“ą“¤ ą“ ą“ą“ø ą“ą“ ą“² ą“ ą“ą“ ą“² ą“ą“³ą“¤ ą“² ą“Øą“¤ ą“°ą“£ ą“£ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“ą“ą“µą“³ą“ą“³ą“¤ ą“² ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“¤ ą“Øą“ ą“Æ ą“³ ą“³ ą“ą“° ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“Øą“ą“ą“¤ ą“¤ą“£ą“¤ą“ ą“£ą“ø 7 2 ą“ą“®ą“¤ ą“·ą“Ø ą“®ą“ ą“Æ ą“Ŗ ą“° ą“øą“Ŗ ą“° ą“øą“ ą“Ø ą“øą“°ą“ą“ ą“° ą“®ą“ ą“Æ ą“Ŗ ą“° ą“ ą“ą“¤ ą“Æą“ ą“ą“² ą“ ą“ą“¤ ą“ ą“ą“ø ą“ą“ą“Ø ą“ą“µą“£ ą“Ŗą“®ą“Ø ą“± ą“ø ą“ą“ ą“² ą“ ą“ą“ ą“² ą“ą“³ą“¤ ą“² ą“ą“£ą“ ą“ ą“ ą“Ø ą“Ø ą“
ą“¤ ą“¤ą“°ą“Ŗ ą“° ą“Øą“¤ ą“Æą“Ø ą“¤ ą“°ą“£ą“ą“³ą“ą“Ø ą“ø ą“¤ą“®ą“ ą“Æą“¤ ą“ą“®ą“¤ ą“·ą“Ø ą“Ŗą“°ą“¤ ą“ ą“Øą“ą“ą“¤ ą“¤ą“£ą“¤ą“ ą“£ą“ø 7 3 ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“øą“Ŗ ą“° ą“øą“ ą“Ø ą“øą“°ą“ą“ ą“° ą“ą“³ ą“®ą“ ą“Æą“¤ ą“ ą“ą“¤ ą“Æą“ ą“ą“² ą“ ą“ą“¤ ą“ ą“ą“ø ą“ą“ą“Ø ą“ą“µą“£ ą“Ŗą“®ą“Ø ą“± ą“ø ą“ą“ ą“² ą“ ą“ą“ ą“² ą“ą“³ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“ą“ ą“¤ą“¤ ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ą“ą“ ą“°ą“ą“ ą“Æ ą“³ ą“³ ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“ ą“°ą“ą“ ą“Æ ą“³ ą“³ ą“øą“°ą“µą“¤ ą“øą“¤ ą“Ŗą“² ą“Ŗą“ą“¤ą“Øą“ ą“Ŗą“ ą“¤ą“¤ ą“Øą“¤ ą“§ą“Øą“Ŗ ą“° ą“øą“Ŗ ą“° ą“¬ą“Ø ą“§ą“¤ ą“ ą“ą“ø ą“Ŗ ą“±ą“Ŗą“Ŗą“ ą“µą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“¤ ą“¤ą“°ą“µ ą“ą“³ą“ą“ø ą“µą“¤ ą“ą“§ą“Æą“®ą“ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ŗ ą“° ą“ą“Ø ą“Øą“ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“ą“ ą“¤ą“¤ ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ą“¤ ą“¤ą“¤ ą“² ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ą“¤ ą“² ą“ą“³ą“Ŗą“Ŗą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“³ ą“Ŗ ą“° ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“¤ ą“¤ą“¤ ą“Øą“ø 10 ą“ą“Æą“ ą“ą“Øą“°ą“ ą“Ŗą“£ą“Ø ą“Øą“ø ą“ą“®ą“¤ ą“·ą“Ø ą“Ŗą“ą“Øą“ ą“Ŗą“¤ ą“ ą“ą“µą“° ą“®ą“ ą“Æą“µą“° ą“Ŗą“®ą“±ą“¤ ą“±ą“ø ą“
ą“ą“¤ ą“øą“ ą“Øą“¤ ą“¤ą“¤ ą“² ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“¤ ą“¤ą“¤ ą“Øą“ø ą“ą“Æą“ ą“ą“Øą“°ą“ ą“Æą“ ą“² ą“øą“Ŗ ą“° ą“µą“°ą“£ą“¤ ą“¤ą“¤ ą“Ŗą“Ø ą“± ą“ą“Ø ą“ ą“² ą“Øą“®ą“¤ ą“²ą“ ą“Ŗą“¤ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“®ą“¤ ą“²ą“ ą“¤ ą“¤ ą“ą““ą“¤ ą“µ ą“ą“³ą“¤ ą“² ą“Øą“¤ ą“Æą“®ą“¤ ą“ą“ą“£ą“¤ą“ ą“£ą“ø ą“ą“Ø ą“Øą“² ą“Øą“² ą“ą“Ŗą“Ŗą“ ą“ą“¤ą“ø 7 4 ą“ą“°ą“£ą“¤ ą“¤ą“¤ ą“Ŗą“Ø ą“± ą“ą“ ą“°ą“Øą“ą“®ą“¤ ą“Øą“¤ ą“² ą“Øą“¤ ą“± ą“¤ ą“¤ ą“Ø ą“Øą“¤ą“ø ą“ą“£ą“ą“¤ ą“Ŗą“² ą“ ą“¤ ą“¤ą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“¤ ą“¤ą“¤ ą“Øą“ø ą“
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ą“Ŗą“²ą“ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ ą“ ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ą“¤ ą“² ą“Ŗą“Ŗą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“Ŗą“³ ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“Ŗą“ ą“ą“¤ ą“ą“ą“ ą“¤ą“¤ ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ą“ą“ ą“° ą“
ą“Ŗą“²ą“ą“¤ ą“² ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ą“ą“ ą“Æą“¤ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“Ŗ ą“° ą“Ŗą“ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą““ą“¤ ą“µ ą“ą“³ą“¤ ą“ą“² ą“ą“ø ą“Øą“¤ ą“Æą“®ą“¤ ą“ą“ ą“Ŗ ą“° ą“µą“¤ ą“¶ą“¦ą“¤ ą“ą“°ą“£ ą“ ą“±ą“¤ ą“Ŗą“ø 1994 ą“® ą“¤ą“² ą“ ą“£ą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ ą“ ą“³ ą“³ ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“¤ ą“Øą“ ą“Æą“¤ ą“®ą“±ą“ø ą“Ŗą“¤ ą“Ø ą“Øą“ ą“ ą“µą“¤ ą“ą“ ą“ą“ą“³ ą“Ŗą“ ą“øą“Ŗ ą“° ą“µą“°ą“£ą“¤ ą“¤ą“¤ ą“Ø ą“³ ą“³ ą“µą“Øą“µą“øą“ą“³ ą“ą“°ą“Ŗ ą“° ą“ą“¤ ą“ ą“ą“¤ą“ø ą“
ą“¤ą“¤ ą“Øą“ ą“² 1994 ą“ą“Ø ą“µą“°ą“¤ 1 ą“® ą“¤ą“² ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ą“ ą“Ø ą“Øą“¤ ą“°ą“ą“¦ ą“¦ ą“¶ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ ą“Ø ą“Øą“¤ą“¤ ą“² ą“Ŗą“ 11 ą“ą“Ŗą“°ą“Æ ą“Ŗ ą“° ą“Ŗą“¤ą“¤ ą“ ą“² ą“®ą“ ą“Æą“¤ ą“¬ą“ ą“§ą“¤ ą“ ą“ ą“Ø ą“Øą“¤ ą“Ŗą“²ą“Ø ą“Øą“ø ą“øą“ ą“ą“Øą“Ŗą“Ŗą“ ą“¤ ą“¤ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 1955 ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“Ŗą“Ø ą“± ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø ą“ą“ ą“ą“ą“³ 1954 ą“ą“ ą“ą“Ŗ ą“° 7 ą“
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ą“¤ą“ ą“Æą“¤ą“ø xxx xxx xxx 7 ą“µą“¤ ą“ą“Æą“¤ ą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“³ ą“Ŗą“ ą“Ŗą“ ą“ą“¤ ą“ 1 ą“øą“¬ą“ø ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø 2 ą“µą“Øą“µą“øą“Æą“ø ą“µą“¤ ą“ą“§ą“Æą“®ą“ ą“Æą“¤ ą“ą“®ą“¤ ą“·ą“Ø ą“Øą“¤ ą“°ą“£ ą“£ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2002 12ą“ ą“° ą“ą“¤ ą“¤ą“¤ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2002 24 ą“² 70 ą“ą“«ą“¤ ą“øą“°ą“®ą“ ą“Ŗą“° ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“ą“Æą“ ą“Ø ą“Ŗ ą“° ą“¬ą“ ą“ą“¤ ą“Æ ą“³ ą“³ 15 ą“ą““ą“¤ ą“µ ą“ą“³ ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2006 ą“Ŗą“² ą“ą““ą“¤ ą“µ ą“ą“³ ą“Ŗą“ ą“Æą“„ą“ ą“°ą“¤ ą“ą“µą“¶ą“Øą“ą“¤ 89 ą“ą“Æą“¤ 85 4 13 ą“
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ą“ą“Ŗą“ą“¤ ą“ 2 ą“ą“ą“¦ą“Øą“ ą“ą“øą“Ŗą“° ą“
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ą“§ą“¤ ą“ą“ ą“°ą“ą“³ ą“µą“¤ ą“Øą“¤ ą“ą“Æą“ ą“ą“¤ ą“ą“Ŗą“ą“ ą“£ą“ø lxi of 1951 ą“ą“ą“Ø ą“ą“µą“£ ą“Ŗą“®ą“Ø ą“± ą“ø ą“¬ą“Ø ą“§ą“Ŗą“Ŗą“ ą“ ą“øą“Ŗ ą“° ą“øą“ ą“Øą“ą“³ą“¤ ą“Ŗą“² ą“ą“µą“£ ą“Ŗą“®ą“Ø ą“± ą“ą“³ ą“®ą“ ą“Æą“¤ ą“ ą“ą“¤ ą“Æą“ ą“ą“² ą“ ą“ą“¤ ą“ ą“ ą“ą“¶ą“·ą“Ŗ ą“° ą“ą“Øą“¤ ą“Ŗą“±ą“Æ ą“Ø ą“Ø ą“ą“ ą“ą“ą“³ ą“ą“£ą“ ą“ ą“ ą“Ø ą“Ø xxx xxx xxx 2 ą“Øą“¤ ą“°ą“µą“ą“Øą“ą“³ ą“ ą“ą“ ą“ą“ą“³ą“¤ ą“² ą“øą“Ø ą“¦ą“°ą“ą“Ŗ ą“° ą“®ą“± ą“± ą“µą“¤ ą“§ą“¤ ą“¤ą“¤ ą“² ą“ą“µą“¶ą“Øą“Ŗą“Ŗą“ą“ ą“¤ ą“¤ą“Ŗą“ą“Ŗ ą“° ą“ ą“ą“ą“”ą“° ą“ą“«ą“¤ ą“øą“° ą“ą“Ø ą“Øą“ ą“² ą“ą“Øą“Øą“Ø ą“
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ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“ą“ą“”ą“° ą“
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ą“”ą“¤ ą“Øą“¤ ą“øą“ø ą“ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“®ą“Ø ą“± ą“ø ą“± ą“³ą“øą“ø 19549 ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“·ą“Ø ą“øą“°ą“µą“¤ ą“øą“ø ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 195510 ą“¤ą“ ą“Ŗą““ ą“µą“ ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“Ŗą“ą“ ą“°ą“®ą“ ą“£ą“ø ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø ą“± ą“³ą“øą“ø 1954 1951 ą“Ŗą“² ą“ą“³ ą“ą“Øą“Ø ą“øą“°ą“µą“¤ ą“øą“øą“ø ą“ą“ą“¤ ą“Ŗą“² lxi ą“Ŗą“² 1951 3 ą“ą“Ŗ ą“° ą“µą“ ą“Ŗą“¤ ą“Ŗą“Ø ą“± ą“ą“Ŗą“µą“ ą“Ŗą“ø 1 ą“Øą“² ą“ ą“Ø ą“Ø ą“
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ą“¤ą“¤ ą“Øą“ ą“² 1994 ą“ą“Ø ą“µą“°ą“¤ 1 ą“® ą“¤ą“² ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ą“ ą“Ø ą“Øą“¤ ą“°ą“ą“¦ ą“¦ ą“¶ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“ ą“ą“Ŗ ą“° 7 ą“Ŗą“² ą“ą“Ŗą“ą“ ą“ą“Ŗ ą“° 3 ą“Ŗą“² ą“µą“Øą“µą“øą“ą“³ą“ą“ø ą“® ą“Ø ą“ą“ ą“² ą“Ŗą“ ą“¬ą“² ą“Øą“Ŗ ą“° ą“Øą“² ą“ ą“Ø ą“Øą“¤ą“¤ ą“² ą“Ŗą“ 11 ą“ą“Ŗą“°ą“Æ ą“Ŗ ą“° ą“Ŗą“¤ą“¤ ą“ ą“² ą“®ą“ ą“Æą“¤ ą“¬ą“ ą“§ą“¤ ą“ ą“ ą“Ø ą“Øą“¤ ą“Ŗą“²ą“Ø ą“Øą“ø ą“øą“ ą“ą“Øą“Ŗą“Ŗą“ ą“¤ ą“¤ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“ø ą“®ą“¤ ą“øą“° ą“Ŗą“°ą“¤ ą“ ą“µą““ą“¤ ą“Æ ą“³ ą“³ ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø ą“øą“ø 1955 ą“ą“Øą“Øą“Ø ą“
ą“”ą“¤ ą“Øą“¤ ą“ą“ø ą“ ą“° ą“±ą“¤ ą“µą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“Ŗą“Ø ą“± ą“±ą“¤ ą“ ą“° ą“ ą“ą“øą“Ŗą“®ą“Ø ą“± ą“ø ą“ą“ ą“ą“ą“³ 1954 ą“ą“ ą“ą“Ŗ ą“° 7 ą“
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ą“¤ą“ ą“Æą“¤ą“ø xxx xxx xxx 7 ą“µą“¤ ą“ą“Æą“¤ ą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“³ ą“Ŗą“ ą“Ŗą“ ą“ą“¤ ą“ 1 ą“øą“¬ą“ø ą“Ŗą“±ą“ ą“ą“² ą“·ą“Ø 2 ą“µą“Øą“µą“øą“Æą“ø ą“µą“¤ ą“ą“§ą“Æą“®ą“ ą“Æą“¤ ą“ą“®ą“¤ ą“·ą“Ø ą“Øą“¤ ą“°ą“£ ą“£ą“Æą“¤ ą“ ą“ ą“Ø ą“Ø ą“
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ą“Ŗą“²ą“ą“¤ ą“² ą“Ŗą“ ą“ą“¤ ą“ą“µą“°ą“ą“¤ ą“¤ą“¤ ą“² ą“Ŗą“Ŗą“ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“³ą“ą“ø ą“øą“°ą“µą“¤ ą“øą“¤ ą“ą“² ą“ą“ø ą“¤ą“¤ ą“°ą“Ŗą“ ą“ ą“ ą“ ą“ ą“Ø ą“Øą“¤ą“¤ ą“Ø ą“³ ą“³ ą“ ą“ą“ą“¦ą“Øą“ ą“ą“ ą“°ą“¤ą“¤ ą“ą“³ ą“Ŗą“ 12 ą“«ą“¤ ą“±ą“øą“Øą“øą“¤ ą“Ø ą“µą“¤ ą“ą“§ą“Æą“®ą“ ą“Æą“¤ ą“ą“° ą“ą“³ą“µą“ø ą“®ą“ ą“Øą“¦ą“£ ą“”ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“®ą“¤ ą“·ą“Ø ą“¶ ą“Ŗą“ ą“°ą“¶ ą“Ŗą“ą“Æą“ ą“µ ą“Ø ą“Øą“¤ą“ ą“£ą“ø ą“ą“Ø ą“Øą“ ą“² ą“ ą“øą“¬ą“ø ą“Ŗą“±ą“ ą“ą“² ą“·ą“Øą“¤ ą“² ą“Ŗą“°ą“ ą“®ą“°ą“¶ą“¤ ą“ ą“ą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“Ø ą“ą“³ą“µą“ø ą“®ą“ ą“Øą“¦ą“£ ą“”ą“Ŗ ą“° ą“
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ą“ą“ ą“ ą“£ą“øą“ø ą“ø ą“øą“°ą“µą“¤ ą“ø ą“®ą“ ą“Æą“¤ ą“¬ą“Ø ą“§ą“Ŗą“Ŗą“ ą“ą“ø ą“ą“£ ą“ą“ ą“° ą“ ą“³ą“° ą“ą“Ø ą“”ą“ø ą“ą“”ą“¤ ą“±ą“° ą“ą“Øą“±ą“² ą“¤ ą“Ŗą“Ø ą“± ą“Æ ą“Ŗ ą“° ą“øą“®ą“¤ą“ą“¤ ą“¤ą“ ą“Ŗą“ ą“Ŗą“Ŗą“ ą“¤ ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2002 12ą“ ą“° ą“ą“¤ ą“¤ą“¤ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2002 24 ą“² 70 ą“ą“«ą“¤ ą“øą“°ą“®ą“ ą“Ŗą“° ą“±ą“¤ ą“ ą“° ą“ ą“ą“ø ą“Ŗą“ą“Æą“ ą“Ø ą“Ŗ ą“° ą“¬ą“ ą“ą“¤ ą“Æ ą“³ ą“³ 15 ą“ą““ą“¤ ą“µ ą“ą“³ ą“
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ą“¤ą“¤ ą“Øą“ ą“² ą“øą“¤ ą“ą“øą“ø ą“ 2006 ą“Ŗą“² ą“ą““ą“¤ ą“µ ą“ą“³ ą“Ŗą“ ą“Æą“„ą“ ą“°ą“¤ ą“ą“µą“¶ą“Øą“ą“¤ 89 ą“ą“Æą“¤ 85 4 13 ą“
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ą“ą“Ŗą“ą“¤ ą“ 2 ą“ą“ą“¦ą“Øą“ ą“ą“øą“Ŗą“° ą“
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ą“µą“°ą“ą“ø ą“ą“Æą“°ą“Ø ą“Ø ą“ą“ą“ ą“Æą“øą“ø ą“ø ą“ą“³ ą“³ ą“ą“øą“µą“Øą“Ŗ ą“° ą“
ą“µą“° ą“Ŗą“ ą“ą“· ą“ą“ ą“Ø ą“øą“°ą“£ą“Ŗ ą“° ą“² ą“ą“¤ ą“ ą“ ą“ą“Æą“ ą“Ŗą“£ą“ą“¤ truncated 1384 2021_crl a no 000432 000432 2021 kishan kaul j 1 fir 2019 10 11 gounder v state reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 432 of 2021 arising from slp crl no 673 2021 dharmesh dharmendra dhamo jagdishbhai jagabhai bhagubhai ratadia anr appellants versus the state of gujarat respondent j u d g m e n t sanjay kishan kaul j 1 an unfortunate incident took place on 10 11 2019 which is alleged by the complainant to be caused by certain members of his caste providing assistance to the police which resulted in a free fight where the appellants herein were also present two persons succumbed to their injuries and an fir was registered on 11 11 2019 with the amreli police station against 13 persons being cr no i 94 of 2019 under sections 302 307 324 323 506 2 504 143 144 147 148 149 120b and 34 of the ipc as 1 well as section 135 ii of the gujarat police act in pursuance of the investigations chargesheet was filed in the court a counter fir was also filed on 11 11 2019 being i 95 2019 against the complainant and other witnesses under sections 324 323 504 506 2 143 144 147 148 and 149 of the ipc as well as section 135 ii of the gujarat police act 2 the appellants before us were arrayed as accused nos 12 13 and were arrested on 11 11 2019 upon applying for bail in terms of the impugned judgment dated 15 12 2020 bail was granted to them however they are aggrieved by the condition imposed on them for bail requiring them to deposit rs 2 00 lakh each as compensation to the victims before the learned trial court within a period of three months 3 the narrow compass of the arguments before us rests on the absence of any provision in the code of criminal procedure 1908 hereinafter referred to as the crpc entitling the court to impose such a condition for payment of compensation for grant of bail it is the submission of the learned counsel for the appellants that the high court imposed this condition for bail in view of the amended provisions relating to victim compensation without referring to any specific provision 4 learned counsel for the appellants took us through different 2 provisions dealing with the aspect of compensation under the crpc 5 in respect of the aforesaid the first provisions referred to was section 357 which reads as under 357 order to pay compensation 1 when a court imposes a sentence of fine or a sentence including a sentence of death of which fine forms a part the court may when passing judgment order the whole or any part of the fine recovered to be applied a in defraying the expenses properly incurred in the prosecution b in the payment to any person of compensation for any loss or injury caused by the offence when compensation is in the opinion of the court recoverable by such person in a civil court c when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence in paying compensation to the persons who are under the fatal accidents act 1855 13 of 1855 entitled to recover damages from the person sentenced for the loss resulting to them from such death d when any person is convicted of any offence which includes theft criminal misappropriation criminal breach of trust or cheating or of having dishonestly received or retained or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto 2 if the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed or if an appeal be presented before the decision of the appeal 3 3 when a court imposes a sentence of which fine does not form a part the court may when passing judgment order the accused person to pay by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced 4 an order under this section may also be made by an appellate court or by the high court or court of session when exercising its powers of revision 5 at the time of awarding compensation in any subsequent civil suit relating to the same matter the court shall take into account any sum paid or recovered as compensation under this section emphasis supplied 6 in the aforesaid context it was pointed out that the essential requirements under this section are a imposition of fine or sentence b the aforesaid would naturally be at the time of passing of the judgment c orders the whole or any part of the fine be recovered 7 in the aforesaid scenario as per clause d of sub section 1 of section 357 of the crpc the said amount could be utilised for payment of compensation for any loss or injury caused by the offence when such amount would be recoverable in a civil court 8 this court s attention has also been invited to sub section 3 of section 357 crpc which again begins with when the court imposes a sentence and where a fine does not form a part an 4 accused may be asked to pay compensation when passing the judgment 9 it is thus submitted that it is clear from a plain reading of section 357 that such compensation can only arise after the conclusion of trial albeit of course the same being a matter of discretion thus without a full fledged trial there cannot be a sentence and thus there cannot be any such compensation 10 the other provision referred to is section 235 2 of the crpc section 235 crpc reads as under 235 judgment of acquittal or conviction 1 after hearing arguments and points of law if any the judge shall give a judgment in the case 2 if the accused is convicted the judge shall unless he proceeds in accordance with the provisions of section 360 hear the accused on the question of sentence and then pass sentence on him according to law emphasis supplied 11 it is submitted that a judge has to hear an accused on the question of sentence which would also support the plea as per the scheme of the act that the sentence must precede grant of compensation 12 it is in the aforesaid context that this court had opined in palaniappa gounder v state of tamil nadu ors 1 that a court 11977 scr 3 132 5 must take into account the nature of the crime the injury suffered the justness of the claim the capacity to pay and other relevant circumstances in fixing the amount of fine or compensation these aspects would be considered only after giving an opportunity to the person convicted to hear him out on these aspects and that would naturally be post the conviction the grant of bail it was contended would only be as we say even if charges are framed a prima facie view based on the principle of not unnecessarily keeping a person in custody 13 learned counsel also referred to the provisions of section 250 1 of the crpc which reads as under 250 compensation for accusation without reasonable cause 1 if in any case instituted upon complaint or upon information given to a police officer or to a magistrate one or more persons is or are accused before a magistrate of any offence triable by a magistrate and the magistrate by whom the case is heard discharges or acquits all or any of the accused and is of opinion that there was no reasonable ground for making the accusation against them or any of them the magistrate may by his order of discharge or acquittal if the person upon whose complaint or information the accusation was made is present call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one or if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid emphasis supplied 14 the aforesaid provision comes also at the same stage albeit 6 where an accused is acquitted to award compensation if the court is satisfied that there was no reasonable ground for making the accusation against him this is of course in a contra scenario 15 one further aspect pointed out by learned counsel for the appellant is that the inadequacy of compensation is appealable under section 372 of the crpc which would naturally imply that a conclusion has been reached on imposition of sentence and or fine the condition for award of damages as a condition for bail would not be appealable 16 we called upon learned counsel for the state to address submissions in this regard but she was not able to portray a picture against what has been placed before us by the learned counsel for the appellants and really cannot be so in our view the objective is clear that in cases of offences against body compensation to the victim should be a methodology for redemption similarly to prevent unnecessary harassment compensation has been provided where meaningless criminal proceedings had been started such a compensation can hardly be determined at the stage of grant of bail 17 we may hasten to add that we are not saying that no monetary condition can be imposed for grant of bail we say so as there 7 are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take place as a condition of the person being enlarged on bail 18 once we come to the aforesaid conclusion the direction contained in the impugned order for deposit of compensation of rs 2 00 lakh for the legal heirs of the deceased naturally cannot be sustained and has to be logically set aside 19 we also consider it appropriate not only to consider the aforesaid aspects but also whether bail should be granted to the appellants and if so on what terms and conditions this is also recorded at the time of issuance of notice 20 in the aforesaid context learned counsel for the appellants contended that the specific allegations against the two appellants as accused nos 12 13 is that they had beaten the complainant and the witnesses and not any of the deceased it was a case of free fight between two groups where each alleges the other to be the aggressor not only that the other accused nos 3 9 10 6 had been granted bail without imposing the aforesaid condition in case of these accused specific roles related to a blows being given with wooden sticks and iron pipes with a shout to kill b blow with the stick to the complainant and witnesses and c the 8 allegation of forwarding a whatsapp recording to create animosity between the two groups apart from these four accused it was urged that out of total 13 arrayed accused 11 had been released on bail by the high court and or sessions court the high court had imposed stringent conditions including an embargo from entering the geographical limits of amreli and regularly marking presence before the police station amongst other conditions learned counsel for the appellants claims parity with those orders and submits that the appellants may be imposed with the same conditions even though their role was much less than the other accused persons 21 learned counsel for the state once again cannot dispute the role of the appellants vis Ć vis the role of the other accused who had been enlarged on bail on the aforesaid terms and conditions 22 in view of the aforesaid we consider it appropriate to impose the same terms and conditions for grant of bail upon the appellants and set aside condition f of the bail requiring the appellants to deposit rs 2 00 lakh each towards compensation to the victims before the trial court and the consequential orders for disbursement this condition is instead to be substituted with the condition that the appellants will not enter the geographical limits of amreli for a period of six 6 months except for 9 marking presence before the concerned police station and to attend the court proceedings 23 the appeal is accordingly allowed in the aforesaid terms leaving the parties to bear their own costs j sanjay kishan kaul j hemant gupta new delhi july 07 2021 10 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 432 of 2021 arising from slp crl no 673 2021 dharmesh dharmendra dhamo jagdishbhai jagabhai bhagubhai ratadia anr appellants versus the state of gujarat respondent j u d g m e n t sanjay kishan kaul j 1 an unfortunate incident took place on 10 11 2019 which is alleged by the complainant to be caused by certain members of his caste providing assistance to the police which resulted in a free fight where the appellants herein were also present two persons succumbed to their injuries and an fir was registered on 11 11 2019 with the amreli police station against 13 persons being cr no i 94 of 2019 under sections 302 307 324 323 506 2 504 143 144 147 148 149 120b and 34 of the ipc as 1 well as section 135 ii of the gujarat police act in pursuance of the investigations chargesheet was filed in the court a counter fir was also filed on 11 11 2019 being i 95 2019 against the complainant and other witnesses under sections 324 323 504 506 2 143 144 147 148 and 149 of the ipc as well as section 135 ii of the gujarat police act 2 the appellants before us were arrayed as accused nos 12 13 and were arrested on 11 11 2019 upon applying for bail in terms of the impugned judgment dated 15 12 2020 bail was granted to them however they are aggrieved by the condition imposed on them for bail requiring them to deposit rs 2 00 lakh each as compensation to the victims before the learned trial court within a period of three months 3 the narrow compass of the arguments before us rests on the absence of any provision in the code of criminal procedure 1908 hereinafter referred to as the crpc entitling the court to impose such a condition for payment of compensation for grant of bail it is the submission of the learned counsel for the appellants that the high court imposed this condition for bail in view of the amended provisions relating to victim compensation without referring to any specific provision 4 learned counsel for the appellants took us through different 2 provisions dealing with the aspect of compensation under the crpc 5 in respect of the aforesaid the first provisions referred to was section 357 which reads as under 357 order to pay compensation 1 when a court imposes a sentence of fine or a sentence including a sentence of death of which fine forms a part the court may when passing judgment order the whole or any part of the fine recovered to be applied a in defraying the expenses properly incurred in the prosecution b in the payment to any person of compensation for any loss or injury caused by the offence when compensation is in the opinion of the court recoverable by such person in a civil court c when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence in paying compensation to the persons who are under the fatal accidents act 1855 13 of 1855 entitled to recover damages from the person sentenced for the loss resulting to them from such death d when any person is convicted of any offence which includes theft criminal misappropriation criminal breach of trust or cheating or of having dishonestly received or retained or of having voluntarily assisted in disposing of stolen property knowing or having reason to believe the same to be stolen in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto 2 if the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed or if an appeal be presented before the decision of the appeal 3 3 when a court imposes a sentence of which fine does not form a part the court may when passing judgment order the accused person to pay by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced 4 an order under this section may also be made by an appellate court or by the high court or court of session when exercising its powers of revision 5 at the time of awarding compensation in any subsequent civil suit relating to the same matter the court shall take into account any sum paid or recovered as compensation under this section emphasis supplied 6 in the aforesaid context it was pointed out that the essential requirements under this section are a imposition of fine or sentence b the aforesaid would naturally be at the time of passing of the judgment c orders the whole or any part of the fine be recovered 7 in the aforesaid scenario as per clause d of sub section 1 of section 357 of the crpc the said amount could be utilised for payment of compensation for any loss or injury caused by the offence when such amount would be recoverable in a civil court 8 this court s attention has also been invited to sub section 3 of section 357 crpc which again begins with when the court imposes a sentence and where a fine does not form a part an 4 accused may be asked to pay compensation when passing the judgment 9 it is thus submitted that it is clear from a plain reading of section 357 that such compensation can only arise after the conclusion of trial albeit of course the same being a matter of discretion thus without a full fledged trial there cannot be a sentence and thus there cannot be any such compensation 10 the other provision referred to is section 235 2 of the crpc section 235 crpc reads as under 235 judgment of acquittal or conviction 1 after hearing arguments and points of law if any the judge shall give a judgment in the case 2 if the accused is convicted the judge shall unless he proceeds in accordance with the provisions of section 360 hear the accused on the question of sentence and then pass sentence on him according to law emphasis supplied 11 it is submitted that a judge has to hear an accused on the question of sentence which would also support the plea as per the scheme of the act that the sentence must precede grant of compensation 12 it is in the aforesaid context that this court had opined in palaniappa gounder v state of tamil nadu ors 1 that a court 11977 scr 3 132 5 must take into account the nature of the crime the injury suffered the justness of the claim the capacity to pay and other relevant circumstances in fixing the amount of fine or compensation these aspects would be considered only after giving an opportunity to the person convicted to hear him out on these aspects and that would naturally be post the conviction the grant of bail it was contended would only be as we say even if charges are framed a prima facie view based on the principle of not unnecessarily keeping a person in custody 13 learned counsel also referred to the provisions of section 250 1 of the crpc which reads as under 250 compensation for accusation without reasonable cause 1 if in any case instituted upon complaint or upon information given to a police officer or to a magistrate one or more persons is or are accused before a magistrate of any offence triable by a magistrate and the magistrate by whom the case is heard discharges or acquits all or any of the accused and is of opinion that there was no reasonable ground for making the accusation against them or any of them the magistrate may by his order of discharge or acquittal if the person upon whose complaint or information the accusation was made is present call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one or if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid emphasis supplied 14 the aforesaid provision comes also at the same stage albeit 6 where an accused is acquitted to award compensation if the court is satisfied that there was no reasonable ground for making the accusation against him this is of course in a contra scenario 15 one further aspect pointed out by learned counsel for the appellant is that the inadequacy of compensation is appealable under section 372 of the crpc which would naturally imply that a conclusion has been reached on imposition of sentence and or fine the condition for award of damages as a condition for bail would not be appealable 16 we called upon learned counsel for the state to address submissions in this regard but she was not able to portray a picture against what has been placed before us by the learned counsel for the appellants and really cannot be so in our view the objective is clear that in cases of offences against body compensation to the victim should be a methodology for redemption similarly to prevent unnecessary harassment compensation has been provided where meaningless criminal proceedings had been started such a compensation can hardly be determined at the stage of grant of bail 17 we may hasten to add that we are not saying that no monetary condition can be imposed for grant of bail we say so as there 7 are cases of offences against property or otherwise but that cannot be a compensation to be deposited and disbursed as if that grant has to take place as a condition of the person being enlarged on bail 18 once we come to the aforesaid conclusion the direction contained in the impugned order for deposit of compensation of rs 2 00 lakh for the legal heirs of the deceased naturally cannot be sustained and has to be logically set aside 19 we also consider it appropriate not only to consider the aforesaid aspects but also whether bail should be granted to the appellants and if so on what terms and conditions this is also recorded at the time of issuance of notice 20 in the aforesaid context learned counsel for the appellants contended that the specific allegations against the two appellants as accused nos 12 13 is that they had beaten the complainant and the witnesses and not any of the deceased it was a case of free fight between two groups where each alleges the other to be the aggressor not only that the other accused nos 3 9 10 6 had been granted bail without imposing the aforesaid condition in case of these accused specific roles related to a blows being given with wooden sticks and iron pipes with a shout to kill b blow with the stick to the complainant and witnesses and c the 8 allegation of forwarding a whatsapp recording to create animosity between the two groups apart from these four accused it was urged that out of total 13 arrayed accused 11 had been released on bail by the high court and or sessions court the high court had imposed stringent conditions including an embargo from entering the geographical limits of amreli and regularly marking presence before the police station amongst other conditions learned counsel for the appellants claims parity with those orders and submits that the appellants may be imposed with the same conditions even though their role was much less than the other accused persons 21 learned counsel for the state once again cannot dispute the role of the appellants vis Ć vis the role of the other accused who had been enlarged on bail on the aforesaid terms and conditions 22 in view of the aforesaid we consider it appropriate to impose the same terms and conditions for grant of bail upon the appellants and set aside condition f of the bail requiring the appellants to deposit rs 2 00 lakh each towards compensation to the victims before the trial court and the consequential orders for disbursement this condition is instead to be substituted with the condition that the appellants will not enter the geographical limits of amreli for a period of six 6 months except for 9 marking presence before the concerned police station and to attend the court proceedings 23 the appeal is accordingly allowed in the aforesaid terms leaving the parties to bear their own costs j sanjay kishan kaul j hemant gupta new delhi july 07 2021 10 1406 2018_w p c no 000040 2018 state of 2017 05 09 ors v state others v d y pradesh v jainarayan non reportable in the supreme court of india civil original jurisdiction writ petition c no 40 of 2018 saraswati educational charitable trust anr petitioners s versus union of india ors respondent s with writ petition c no 291 of 2019 j u d g m e n t l nageswara rao j 1 writ petition c no 40 of 2018 has been filed by saraswati educational charitable trust challenging the notice dated 29th september 2017 issued by the second respondent medical council of india by which the saraswati medical college hereinafter referred to as the college was directed to discharge 132 out of 150 students admitted in the first year bachelor of medicine bachelor of surgery mbbs course for the academic year 2017 2018 1 pa ge 2 writ petition c no 291 of 2019 has been filed by 71 students who have been admitted in first year mbbs course for the academic year 2017 2018 in saraswati medical college to permit them to continue with their studies and to direct the registrar uttar pradesh medical council the seventh respondent herein to declare their results of the first year mbbs course 3 saraswati medical college was established by saraswati educational charitable trust in the year 2016 the college applied for grant of renewal of permission for admission of 150 students for the academic year 2017 2018 an inspection was conducted in november 2016 followed by a second surprise inspection by the assessing team on 21st and 22nd november 2016 renewal of permission was not granted by an order dated 10th august 2017 which was challenged by the petitioner in writ petition no 515 of 2017 before this court this court by its judgment dated 1st september 2017 directed the respondents therein to permit the college to take part in the counselling process for the year 2017 2018 the cut off date for completion of admission in respect of the college was extended till 5th september 2017 the respondents were directed to make available students willing to take admission in the college 2 pa ge through central counselling in order of merit the petitioner no 2 requested the director general of medical education and training respondent no 3 herein to provide a list of students from the national eligibility cum entrance test neet 2017 merit list to enable the college to make admission before 5th september 2017 an email was sent by the college to the third respondent with the same request for providing the list of students at 6 41 p m on 1st september 2017 on 4th september 2017 the management of the college reiterated the request of allotment of students for admission into first year mbbs course 4 the third respondent informed all eligible students about the order passed by this court in writ petition no 515 of 2017 and asked them to apply register themselves for admission to first year mbbs course in the college from 4th september 2017 6 00 p m to 5th september 2017 1 00 p m 735 students applied registered within the time schedule for admission to 150 students in the college on 5th september 2017 the third respondent forwarded a list of 150 students on the basis of their merit amongst 735 students only 9 out of 150 students reported and completed their admission formalities by 7 00 p m on 5th september 2017 according to the college a letter was 3 pa ge written by the college at 7 00 p m on 5th september 2017 to the third respondent requesting the third respondent to provide students from the list of 735 students without waiting for a response from the third respondent at 7 32 p m on 5th september 2017 the college issued an urgent notice informing all the 735 candidates who opted for admission pursuant to the notice issued by third respondent on 4th september 2017 to avail the opportunity of admission in the college it was stated in the said notice that admissions will be made in the order of merit from amongst 735 students and the admissions would be completed by 11 59 p m on 5th september 2017 in the meanwhile 9 more students from the original list of 150 students sent by the third respondent were admitted by the college the college filled up 132 seats on 05 09 2017 on receipt of information about the admission of 132 students by the petitioner college on its own without being recommended by the third respondent the medical council of india by a letter dated 29th september 2017 directed the principal saraswati medical college to discharge the 132 students who were admitted in violation of the medical council of india regulations on graduate medical education 1997 hereinafter the regulations this writ petition has been 4 pa ge filed challenging the letter dated 29 09 2017 in which notice was issued on 25 01 2018 the students continued to study and were permitted to take the examinations for the first year mbbs course by the chhatrapati shahu ji maharaj university kanpur uttar pradesh 5 thereafter this court by an order dated 22th july 2019 directed the result of the first year mbbs course to be declared provisionally subject to the outcome of the writ petition it was made clear in the said order that the students shall not claim any equities on the declaration of the result i a no 14176 of 2021 has been filed by the students seeking a direction to permit them to appear in the second year mbbs examinations 6 we have heard mr p s patwalia mr ranjit kumar and mr gaurav bhatia learned senior counsel appearing for the college mr neeraj kishan kaul and mr nikhil nayyar learned senior counsel mr trideep pais learned counsel for the students and mr gaurav sharma learned counsel for the medical council of india the contention of the college is that 132 students were admitted on 5th september 2017 from the list of 735 candidates who have applied pursuant to a notice dated 4th september 2017 strictly on the basis of merit amongst those who approached the college under 5 pa ge extraordinary circumstances it was argued on behalf of the college that the third respondent was lethargic in not allotting sufficient number of students for admission to first year mbbs 2017 2018 till 4th september 2017 though he was informed about the order passed by this court on 1st september 2017 itself on 5th september 2017 the third respondent allotted only 150 students out of whom initially 9 and thereafter 9 students took admission the third respondent was informed about the fact that only a few students took admission however the third respondent did not allot students from the list of 735 students having no other alternative the college made admissions from the list of 735 candidates who have applied pursuant to the notice issued by the third respondent on 4th september 2017 it was also argued on behalf of the college that the admissions were based on merit of the candidates who have applied and till date there is no complaint from any student that he she was ignored in spite of being more meritorious than the students who were admitted 7 the students pleaded ignorance about any illegality or irregularity in the matter of their admission to the first year mbbs course for the year 2017 2018 they responded to the notice issued by the third respondent on 4th september 6 pa ge 2017 they were hopefully waiting for their admission in case the 150 students who have been allotted to the college do not join only 18 from the list of 150 students sent by the third respondent joined the college pursuant to the urgent notice they participated in the selection process conducted by the college and were admitted on the last date fixed by this court i e 5th september 2017 as they cannot be held responsible for any violation of the regulations if any they request this court to permit them to complete the course as they are all neet qualified candidates and their names were in the list of 735 students who applied pursuant to the notice issued by third respondent on 4th september 2017 8 the learned counsel for the medical council of india relied upon regulation 5 a of the medical council regulations on graduate medical education 1997 to argue that all admissions to the mbbs course shall be on the basis of the merit list of the neet admissions shall be made from the list sent by the director general medical education on the basis of ranking of the students in neet the college can make admissions of students allotted by the director general medical education in case students from the list of 150 did not join before the last date the college should have approached this court for extension of time and for a 7 pa ge direction to the director general medical education to allot more students it was argued on behalf of the medical council of india that the students who were admitted contrary to the regulations are not entitled to claim any equity and the college which acted in blatant violation of the regulation is liable to be penalized suitably 9 regulation 5 a of the regulations provides for counselling for admission to mbbs course in all medical educational institutions on the basis of merit list of neet according to the said regulations no admissions can be made by the petitioner college on its own see modern dental college and research centre ors v state of madhya pradesh ors 1 and state of maharashtra and others v d y patil vidyapeeth and others2 by an order dated 22nd september 2016 in state of madhya pradesh v jainarayan chouksey ors 3 this court held that all admissions to medical colleges shall be made only as per the centralized counselling done by the state governments 10 the college ought not to have admitted 132 students by conducting a selection on its own without requesting the 1 2016 7 scc 353 2 2016 9 scc 401 3 2016 9 scc 412 8 pa ge third respondent to send more candidates the third respondent cannot be blamed for any delay on his part in carrying out the directions issued by this court by its order dated 1st september 2017 in writ petition no 515 of 2017 the college sent an email to the third respondent at 6 32 p m on 1st september 2017 admittedly 2nd and 3rd september were not working days the third respondent acted swiftly on 4th september 2017 and sought for applications from interested students for admission to the college in the first year mbbs course 735 students made applications 150 meritorious students out of 735 were allotted to the college for admission to the first year mbbs course for the academic year 2017 2018 only 9 out of 150 students according to the college took admission the third respondent cannot be said to have been negligent on the other hand the college ought not to have issued a notice at 7 30 p m on 5th september 2017 and admitted 132 students in four hours admissions were made by the college from students who have approached the college after 7 30 p m on 5th september 2017 it is very difficult to accept the submission on behalf of the college that students who were not in the list of 150 students sent by the director general medical education were all waiting for their admission after 9 pa ge 7 30 p m on 5th september 2017 we reject the submission of the college that there was no other alternative except to make admission from the list of 735 students who have applied pursuant to the notice dated 4th september 2017 issued by the third respondent 11 the students who have secured admission cannot be said to be innocent as they knew fully well that their names were not recommended by the director general medical education we also do not agree that students and their parents were not aware that their admissions in college are contrary to the regulations in spite of the letter dated 29th september 2017 issued by the medical council of india the college did not discharge the students the said direction issued by the medical council of india was not stayed by this court in spite of this the students continued their first year mbbs course and managed to write the first year mbbs course examinations after being permitted by the university thereafter they approached this court for declaration of their results for the first year mbbs course examinations which was granted 6 students out of 132 students failed in their first year examination at present 126 students have completed their second year mbbs course and are seeking 10 pa ge permission to appear and write the examination for second year mbbs 12 the admission of 132 students in the college for the academic year 2017 2018 being completely contrary to the regulations the writ petitions are liable to be dismissed however taking note of the fact that the students have completed the second year mbbs course cancelling their admissions at this stage would not serve any useful purpose the students who joined the college knowing fully well that their admissions are contrary to the regulations are directed to do community service for a period of two years after completing their mbbs course the national medical commission shall decide the details and workout the modalities of the community service to be rendered by the 132 students the respondent no 6 university is directed to conduct the second year mbbs examination for 126 students admitted in the petitioner college and who completed their second year course at the earliest and declare their results they shall be permitted to complete the mbbs course this direction is issued only to save the students from losing three academic years in the peculiar facts and circumstances of this case and shall not be treated as a precedent 11 pa ge 13 being aware of the fact that admissions cannot be made from students not allotted by the third respondent the college admitted 132 students on its own thereafter the college permitted the students to continue their studies in spite of the direction by the medical council of india to discharge the students not being stayed intentional violation of the regulations by the petitioner college while granting admission to 132 students in the first year mbbs course for the academic year 2017 2018 cannot be condoned the petitioner college is directed to deposit an amount of rupees five crores in the registry of this court within a period of 8 weeks from today the petitioners are directed not to recover the amount from the students in any manner whatsoever we direct the national medical commission to constitute a trust which shall include the accountant general of the state of uttar pradesh an eminent educationist and a representative of the state of uttar pradesh as members of the trust the trust constituted to manage the amount of rupees five crores to be deposited by the petitioner college shall extend financial assistance to needy students seeking admission to medical colleges in the state of uttar pradesh an action taken report along with the copy of the trust deed 12 pa ge shall be filed by the national medical commission within a period of 12 weeks from today 14 the writ petitions are disposed of with the above directions j l nageswara rao j s ravindra bhat new delhi february 24 2021 13 pa ge non reportable in the supreme court of india civil original jurisdiction writ petition c no 40 of 2018 saraswati educational charitable trust anr petitioners s versus union of india ors respondent s with writ petition c no 291 of 2019 j u d g m e n t l nageswara rao j 1 writ petition c no 40 of 2018 has been filed by saraswati educational charitable trust challenging the notice dated 29th september 2017 issued by the second respondent medical council of india by which the saraswati medical college hereinafter referred to as the college was directed to discharge 132 out of 150 students admitted in the first year bachelor of medicine bachelor of surgery mbbs course for the academic year 2017 2018 1 pa ge 2 writ petition c no 291 of 2019 has been filed by 71 students who have been admitted in first year mbbs course for the academic year 2017 2018 in saraswati medical college to permit them to continue with their studies and to direct the registrar uttar pradesh medical council the seventh respondent herein to declare their results of the first year mbbs course 3 saraswati medical college was established by saraswati educational charitable trust in the year 2016 the college applied for grant of renewal of permission for admission of 150 students for the academic year 2017 2018 an inspection was conducted in november 2016 followed by a second surprise inspection by the assessing team on 21st and 22nd november 2016 renewal of permission was not granted by an order dated 10th august 2017 which was challenged by the petitioner in writ petition no 515 of 2017 before this court this court by its judgment dated 1st september 2017 directed the respondents therein to permit the college to take part in the counselling process for the year 2017 2018 the cut off date for completion of admission in respect of the college was extended till 5th september 2017 the respondents were directed to make available students willing to take admission in the college 2 pa ge through central counselling in order of merit the petitioner no 2 requested the director general of medical education and training respondent no 3 herein to provide a list of students from the national eligibility cum entrance test neet 2017 merit list to enable the college to make admission before 5th september 2017 an email was sent by the college to the third respondent with the same request for providing the list of students at 6 41 p m on 1st september 2017 on 4th september 2017 the management of the college reiterated the request of allotment of students for admission into first year mbbs course 4 the third respondent informed all eligible students about the order passed by this court in writ petition no 515 of 2017 and asked them to apply register themselves for admission to first year mbbs course in the college from 4th september 2017 6 00 p m to 5th september 2017 1 00 p m 735 students applied registered within the time schedule for admission to 150 students in the college on 5th september 2017 the third respondent forwarded a list of 150 students on the basis of their merit amongst 735 students only 9 out of 150 students reported and completed their admission formalities by 7 00 p m on 5th september 2017 according to the college a letter was 3 pa ge written by the college at 7 00 p m on 5th september 2017 to the third respondent requesting the third respondent to provide students from the list of 735 students without waiting for a response from the third respondent at 7 32 p m on 5th september 2017 the college issued an urgent notice informing all the 735 candidates who opted for admission pursuant to the notice issued by third respondent on 4th september 2017 to avail the opportunity of admission in the college it was stated in the said notice that admissions will be made in the order of merit from amongst 735 students and the admissions would be completed by 11 59 p m on 5th september 2017 in the meanwhile 9 more students from the original list of 150 students sent by the third respondent were admitted by the college the college filled up 132 seats on 05 09 2017 on receipt of information about the admission of 132 students by the petitioner college on its own without being recommended by the third respondent the medical council of india by a letter dated 29th september 2017 directed the principal saraswati medical college to discharge the 132 students who were admitted in violation of the medical council of india regulations on graduate medical education 1997 hereinafter the regulations this writ petition has been 4 pa ge filed challenging the letter dated 29 09 2017 in which notice was issued on 25 01 2018 the students continued to study and were permitted to take the examinations for the first year mbbs course by the chhatrapati shahu ji maharaj university kanpur uttar pradesh 5 thereafter this court by an order dated 22th july 2019 directed the result of the first year mbbs course to be declared provisionally subject to the outcome of the writ petition it was made clear in the said order that the students shall not claim any equities on the declaration of the result i a no 14176 of 2021 has been filed by the students seeking a direction to permit them to appear in the second year mbbs examinations 6 we have heard mr p s patwalia mr ranjit kumar and mr gaurav bhatia learned senior counsel appearing for the college mr neeraj kishan kaul and mr nikhil nayyar learned senior counsel mr trideep pais learned counsel for the students and mr gaurav sharma learned counsel for the medical council of india the contention of the college is that 132 students were admitted on 5th september 2017 from the list of 735 candidates who have applied pursuant to a notice dated 4th september 2017 strictly on the basis of merit amongst those who approached the college under 5 pa ge extraordinary circumstances it was argued on behalf of the college that the third respondent was lethargic in not allotting sufficient number of students for admission to first year mbbs 2017 2018 till 4th september 2017 though he was informed about the order passed by this court on 1st september 2017 itself on 5th september 2017 the third respondent allotted only 150 students out of whom initially 9 and thereafter 9 students took admission the third respondent was informed about the fact that only a few students took admission however the third respondent did not allot students from the list of 735 students having no other alternative the college made admissions from the list of 735 candidates who have applied pursuant to the notice issued by the third respondent on 4th september 2017 it was also argued on behalf of the college that the admissions were based on merit of the candidates who have applied and till date there is no complaint from any student that he she was ignored in spite of being more meritorious than the students who were admitted 7 the students pleaded ignorance about any illegality or irregularity in the matter of their admission to the first year mbbs course for the year 2017 2018 they responded to the notice issued by the third respondent on 4th september 6 pa ge 2017 they were hopefully waiting for their admission in case the 150 students who have been allotted to the college do not join only 18 from the list of 150 students sent by the third respondent joined the college pursuant to the urgent notice they participated in the selection process conducted by the college and were admitted on the last date fixed by this court i e 5th september 2017 as they cannot be held responsible for any violation of the regulations if any they request this court to permit them to complete the course as they are all neet qualified candidates and their names were in the list of 735 students who applied pursuant to the notice issued by third respondent on 4th september 2017 8 the learned counsel for the medical council of india relied upon regulation 5 a of the medical council regulations on graduate medical education 1997 to argue that all admissions to the mbbs course shall be on the basis of the merit list of the neet admissions shall be made from the list sent by the director general medical education on the basis of ranking of the students in neet the college can make admissions of students allotted by the director general medical education in case students from the list of 150 did not join before the last date the college should have approached this court for extension of time and for a 7 pa ge direction to the director general medical education to allot more students it was argued on behalf of the medical council of india that the students who were admitted contrary to the regulations are not entitled to claim any equity and the college which acted in blatant violation of the regulation is liable to be penalized suitably 9 regulation 5 a of the regulations provides for counselling for admission to mbbs course in all medical educational institutions on the basis of merit list of neet according to the said regulations no admissions can be made by the petitioner college on its own see modern dental college and research centre ors v state of madhya pradesh ors 1 and state of maharashtra and others v d y patil vidyapeeth and others2 by an order dated 22nd september 2016 in state of madhya pradesh v jainarayan chouksey ors 3 this court held that all admissions to medical colleges shall be made only as per the centralized counselling done by the state governments 10 the college ought not to have admitted 132 students by conducting a selection on its own without requesting the 1 2016 7 scc 353 2 2016 9 scc 401 3 2016 9 scc 412 8 pa ge third respondent to send more candidates the third respondent cannot be blamed for any delay on his part in carrying out the directions issued by this court by its order dated 1st september 2017 in writ petition no 515 of 2017 the college sent an email to the third respondent at 6 32 p m on 1st september 2017 admittedly 2nd and 3rd september were not working days the third respondent acted swiftly on 4th september 2017 and sought for applications from interested students for admission to the college in the first year mbbs course 735 students made applications 150 meritorious students out of 735 were allotted to the college for admission to the first year mbbs course for the academic year 2017 2018 only 9 out of 150 students according to the college took admission the third respondent cannot be said to have been negligent on the other hand the college ought not to have issued a notice at 7 30 p m on 5th september 2017 and admitted 132 students in four hours admissions were made by the college from students who have approached the college after 7 30 p m on 5th september 2017 it is very difficult to accept the submission on behalf of the college that students who were not in the list of 150 students sent by the director general medical education were all waiting for their admission after 9 pa ge 7 30 p m on 5th september 2017 we reject the submission of the college that there was no other alternative except to make admission from the list of 735 students who have applied pursuant to the notice dated 4th september 2017 issued by the third respondent 11 the students who have secured admission cannot be said to be innocent as they knew fully well that their names were not recommended by the director general medical education we also do not agree that students and their parents were not aware that their admissions in college are contrary to the regulations in spite of the letter dated 29th september 2017 issued by the medical council of india the college did not discharge the students the said direction issued by the medical council of india was not stayed by this court in spite of this the students continued their first year mbbs course and managed to write the first year mbbs course examinations after being permitted by the university thereafter they approached this court for declaration of their results for the first year mbbs course examinations which was granted 6 students out of 132 students failed in their first year examination at present 126 students have completed their second year mbbs course and are seeking 10 pa ge permission to appear and write the examination for second year mbbs 12 the admission of 132 students in the college for the academic year 2017 2018 being completely contrary to the regulations the writ petitions are liable to be dismissed however taking note of the fact that the students have completed the second year mbbs course cancelling their admissions at this stage would not serve any useful purpose the students who joined the college knowing fully well that their admissions are contrary to the regulations are directed to do community service for a period of two years after completing their mbbs course the national medical commission shall decide the details and workout the modalities of the community service to be rendered by the 132 students the respondent no 6 university is directed to conduct the second year mbbs examination for 126 students admitted in the petitioner college and who completed their second year course at the earliest and declare their results they shall be permitted to complete the mbbs course this direction is issued only to save the students from losing three academic years in the peculiar facts and circumstances of this case and shall not be treated as a precedent 11 pa ge 13 being aware of the fact that admissions cannot be made from students not allotted by the third respondent the college admitted 132 students on its own thereafter the college permitted the students to continue their studies in spite of the direction by the medical council of india to discharge the students not being stayed intentional violation of the regulations by the petitioner college while granting admission to 132 students in the first year mbbs course for the academic year 2017 2018 cannot be condoned the petitioner college is directed to deposit an amount of rupees five crores in the registry of this court within a period of 8 weeks from today the petitioners are directed not to recover the amount from the students in any manner whatsoever we direct the national medical commission to constitute a trust which shall include the accountant general of the state of uttar pradesh an eminent educationist and a representative of the state of uttar pradesh as members of the trust the trust constituted to manage the amount of rupees five crores to be deposited by the petitioner college shall extend financial assistance to needy students seeking admission to medical colleges in the state of uttar pradesh an action taken report along with the copy of the trust deed 12 pa ge shall be filed by the national medical commission within a period of 12 weeks from today 14 the writ petitions are disposed of with the above directions j l nageswara rao j s ravindra bhat new delhi february 24 2021 13 pa ge 1439 2020_c a no 005829 005830 2021 the labour court the labour court union garden silk 2018 11 13 facts in nutshell are as under 3 1 that the respective workmen were employed and working in the dewas factory of the appellant that vide order dated 13 01 2015 all of them came to be transferred to chopanki district alwar which is 900 kms away from dewas the respective workmen through their union raised the industrial dispute before competent authority and on failure of the conciliation proceedings a reference was made to the labour court 5830 of 2021 5832 of 2021 5846 of 2021 5844 of 2021 5842 of 2021 5840 of 2021 5838 of 2021 5836 of 2021 5834 of 2021 reportable in the supreme court of india civil appellate jurisdiction civil appeal nos 5829 5830 of 2021 caparo engineering india ltd appellant s versus ummed singh lodhi and anr respondent s with civil appeal nos 5831 5832 of 2021 m s caparo engineering india ltd appellant s versus kanhaiyalal madaria and anr respondent s with civil appeal nos 5845 5846 of 2021 m s caparo engineering india ltd appellant s versus mohanlal and anr respondent s with civil appeal nos 5843 5844 of 2021 caparo engineering india ltd appellant s versus dileep chouhan and anr respondent s 1 with civil appeal nos 5841 5842 of 2021 caparo engineering india ltd appellant s versus jugal kishore and anr respondent s with civil appeal nos 5839 5840 of 2021 caparo engineering india ltd appellant s versus parmeshwar and anr respondent s with civil appeal nos 5837 5838 of 2021 m s caparo engineering india ltd appellant s versus makhanlal and anr respondent s with civil appeal nos 5835 5836 of 2021 caparo engineering india ltd appellant s versus rajendra prasad and anr respondent s 2 and civil appeal nos 5833 5834 of 2021 m s caparo engineering india ltd appellant s versus surendra singh tomar and anr respondent s j u d g m e n t m r shah j 1 as common question of law and issues have been raised in this group of appeals as such arising out of the impugned common judgment and order passed by the high court all these appeals are being decided and disposed of together by this common judgment and order 2 feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the high court of madhya pradesh bench at indore in mp no 245 of 2019 and other allied petitions by which the high court has dismissed the said petitions preferred by the appellant herein employer hereinafter referred to as employer and has confirmed the respective judgment and award passed by the labour court dewas dated 13 11 2018 by which the labour court allowed the said reference in favour of the respondents employees by declaring 3 their order of transfer dated 13 01 2015 as illegal and void the employer has preferred the present appeals 3 the brief facts in nutshell are as under 3 1 that the respective workmen were employed and working in the dewas factory of the appellant that vide order dated 13 01 2015 all of them came to be transferred to chopanki district alwar which is 900 kms away from dewas the respective workmen through their union raised the industrial dispute before competent authority and on failure of the conciliation proceedings a reference was made to the labour court the following question was referred to the labour court whether the transfer of shri kanhaiyalal by the non applicant is valid and proper if not then what relief can be granted to him and what directions need to be given to the employer in this respect similar dispute was referred with respect to the each workman 3 2 the respective workmen filed their statement of claim before the labour court it was the case on behalf of the workmen that the transfer was done malafidely with the intention to reduce the number of workmen in the dewas factory that the employer pressurized the workmen to resign and on refusal the employer transferred them without any justifiable reason to chopanki at rajasthan which is 900 kms away such a transfer amounts to the illegal change under section 9a of the industrial disputes act 1947 hereinafter referred to as i d act that 4 all the family members and their relatives are residing at dewas and the facilities which are available at dewas are not available at chopanki and at chopanki within the radius of 40 50 kms neither there is any residential area nor any means of transport are available and that their services is also not required at chopanki factory it was also the case on behalf of the respective workmen that at dewas precision pipes are manufactured whereas at chopanki the work of manufacturing of nut and bolt is done and the transfer will change the nature of work therefore it was prayed to declare the transfer as illegal and void 3 3 the employer filed the reply to the statement of claim before the labour court it was specifically denied that the transfer was done to reduce the number of workmen at dewas it was submitted that no unfair labour practice was adopted and compliance of section 9a of the i d act was not necessary it was also denied that the workmen were pressurized to tender resignation a plea was raised that since there was continuous reduction in production at dewas and the staff had become surplus which was not required and therefore to continue the employment of the concerned workmen they had been transferred as per their service conditions and no notice in this regard under section 9a of the i d act was required it was also stated that at chopanki factory all the facilities are available 5 3 4 both the parties led the evidences the workmen examined pw 1 kanhaiya lal and pw 2 vijay pratap singh ranawat in support of their case plea and the employer examined dw 1 manoj thakkar dw 2 rajveer singh and dw 3 mukesh kulshreshtha both the parties also brought on record the documentary evidences in support of their respective cases 3 5 that on appreciation of evidences the labour court specifically found that employer could not prove that there was continuous reduction of production at dewas factory and that the staff had proportionately become surplus the labour court also found that the workmen nine in numbers were transferred from dewas with the intention to reduce the number of persons employed at dewas and such an act was covered by clause 11 of schedule 4 of the i d act and since no notice of change was given the transfer orders are in violation of section 9a of the i d act the labour court also specifically found on appreciation of evidence that transfer will change the nature of work since the workmen were employed as labourers at dewas and on transfer at chopanki they will be working as supervisor consequently the labour court found the order of transfer as null and void and consequently the labour court set aside the same 6 3 6 feeling aggrieved and dissatisfied with the judgment and award passed by the labour court the employer management preferred writ petitions under article 227 of the constitution of india before the high court and by the impugned common judgment and order the high court has dismissed the said writ petitions treating the said writ petitions under article 227 of the constitution of india feeling aggrieved and dissatisfied with the judgment and order passed by the learned single judge the appellant preferred writ appeal s before the division bench of the high court and the division bench has dismissed the said appeal s as not maintainable observing that the writ petition s before the learned single judge was were under article 227 of the constitution of india 3 7 feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the high court dismissing the writ petitions and confirming the respective judgments and awards passed by the labour court declaring the order of transfer dated 13 01 2015 as illegal null and void and in breach of the provisions of the i d act more particularly section 9a of the i d act the management employer has preferred the present appeals that the appellant has also challenged the order passed by the division bench dismissing the writ appeal s as not maintainable 7 4 shri jaideep gupta learned senior advocate has appeared on behalf of the appellant employer and shri niraj sharma learned advocate has appeared on behalf of the respective respondents workmen 4 1 shri gupta learned senior advocate appearing on behalf of the management employer has vehemently submitted that in the facts and circumstances of the case the high court has committed a grave error in treating the writ petitions under article 227 of the constitution of india it is submitted that as such the awards were challenged by the management by way of writ petitions clearly under article 226 of the constitution 4 2 it is submitted that even the prayer in the writ petitions was for an appropriate writ direction or order to quash and set aside the respective awards it is submitted that in fact initially article 226 was mentioned however due to the objections raised by the registry the appellant was compelled to amend the writ petition and mention under article 227 of the constitution it is submitted that as such even subsequently the appellant filed a writ appeal before the division bench of the high court challenging the judgment and award passed by the learned single judge however the division bench dismissed the writ appeals as not maintainable treating the writ petitions before the learned single judge under article 227 of the constitution it is submitted that as such the writ 8 petitions before the high court were on the face of it petitions under article 226 of the constitution even as can be seen from the material averments made in the writ petitions 4 3 shri gupta learned senior advocate appearing on behalf of the employer has further submitted that in order to determine whether a petition is under article 226 or under article 227 of the constitution what is to be looked at is the nature of jurisdiction invoked and the relief sought therein it is submitted that neither the provision cited in the cause title nor the provision mentioned by the learned single judge while exercising his power were determinative of the true nature of the application and order thereon heavy reliance is placed on the decision of this court in the case of ashok k jha and ors vs garden silk mills limited and anr 2009 10 scc 584 paragraphs 27 to 37 4 4 it is submitted that as such in several subsequent judgments with reference to awards of labour courts the petitions were held to be primarily under article 226 and not under article 227 and therefore amenable to the appellate jurisdiction of the division bench of high court in support of his above submission he has relied upon the following decisions of the madhya pradesh high court as well as of the bombay high court shaillendra kumar vs divisional forest officer and anr 2017 scc online mp 1514 yogendra singh chouhan vs 9 managing director intas pharmaceuticals ltd and anr wa no 46 of 2021 state of madhya pradesh and anr vs patiram wa no 1932 of 2019 2020 scc online mp 3660 and murari lal chhari and ors vs munishwar singh tomar and anr in wa no 1191 of 2019 2019 scc online mp 4559 4 5 it is submitted that as such by not treating considering the writ petitions by the learned single judge under article 226 of the constitution the valuable right available to the employer of appeal before the division bench has been taken away therefore it is requested to remit the matter back to the division bench of the high court to decide the writ appeals in accordance with law and on its own merits it is further submitted that even on merits also both the labour court as well as the high court have erred in declaring the order of transfer as illegal and void and in violation of section 9a of the i d act 4 6 it is submitted that the labour court as well as the learned single judge has materially erred in holding that order of transfer amounted to change of terms and conditions of service requiring a notice under section 9a and in the absence thereof the said order is liable to be set aside it is submitted that as such an order of transfer does not bring about a change in the terms and conditions of service within the meaning of section 9a read with schedule 4 thereof heavy reliance is placed on the decision of the madhya pradesh high court in the case of 10 president vs director rajasthan patrika pvt ltd wp no 12934 of 2015 2015 4 mplj 595 4 7 it is further submitted that clause 11 of schedule 4 is not at all relevant when considering transfer orders it is submitted that the purpose of the transfer order was not to bring about a reduction in the establishment in question it is submitted that to bring a case within the change of terms and conditions of service within the meaning of section 9a it is necessary for the workmen to demonstrate that they have been adversely affected by the reduction reliance is placed on the decision of this court in the case of hindustan lever ltd vs ram mohan ray and ors 1973 4 scc 141 harmohinder singh vs kharga canteen ambala cantt 2001 5 scc 540 and the decision of the bombay high court in the case of associated cement companies ltd vs associated cement staff union 2009 scc online bom 2132 4 8 it is further submitted on behalf of the employer that even otherwise the learned single judge has failed to take into account the contention that the employees are not workmen 4 9 making above submissions and relying upon the above decisions it is prayed to allow the present appeals and quash and set aside the impugned judgments and orders passed by the division bench of the 11 high court learned single judge of the high court and the respective judgments and awards passed by the labour court 5 all these appeals are vehemently opposed by shri niraj sharma learned advocate appearing on behalf of the respective workmen 5 1 it is submitted by shri sharma learned advocate appearing on behalf of the respective workman that in the facts and circumstances of the case no error has been committed by the learned labour court as well as the high court in holding the order of transfer dated 13 01 2015 as illegal invalid and in violation of the provisions of section 9a of the industrial disputes act read with fourth schedule 5 2 it is submitted that the findings recorded by the learned labour court holding the order of transfer dated 13 01 2015 as illegal arbitrary mala fide and in violation of the provisions of section 9a of the industrial disputes act are on appreciation of evidence which the high court has rightly not interfered with in exercise of the powers under article 227 of the constitution of india 5 3 it is vehemently submitted by the learned advocate appearing on behalf of the workmen that as such except 2 3 workmen rest of the workmen were at the fag end of their service career and were transferred to chopanki which is at a distance of about 900 kms it is submitted that all the respective workman had put about 25 to 30 years of service at the time of their transfer and were at the fag end of their 12 service it is submitted that even one of them has retired having attained the age of 60 years it is submitted that the order of transfer dated 13 01 2015 transferring the respective workman form dewas to chopanki and that too at the fag end of their service career amounted to an arbitrary and unfair labour practice by creating a situation in which the workmen were left with no other option except to leave their employment it is submitted that it was in fact a way to retrench the workmen without following the mandatory provisions of law it is further submitted that even sudden transfer of the workmen to a different state and that too at a distance of about 900 kms from their place would cause great hardship as the place where they were transferred had no educational and medical facilities their school going children and old aged parents were to be disturbed and uprooted and the place where they were transferred had no residential area within 40 50 kms form the plant with no means of transport 5 4 it is submitted by shri sharma learned advocate on behalf of the workmen that in view of the above situation the transfer amounted to victimization of the employees by forcing them to quit their jobs it is further submitted that on appreciation of evidence on record the learned labour court had rightly come to the conclusion that by transferring the respective workman to chopanki would be in violation of section 9a read with fourth schedule in as much as by transferring them to chopanki 13 would change the nature of work without issuing any notice under section 9a of the industrial disputes act 5 5 it is submitted that even dw 1 manoj thakkar had admitted in cross examination that by transferring the respective workman from dewas to chopanki number of workers at dewas factory would be reduced it is submitted that he has also admitted that a transferred workmen would work in the capacity of supervisor at chopanki it is submitted that the respective workman was a workman at dewas and as admitted by the employer s witness at chopanki after giving training they will have to work as supervisor it is submitted that therefore transfer of the workmen would amount to depriving them of the beneficial provisions of the industrial disputes act it is submitted that once at the transferred place they will work as a supervisor thereafter they will be out of the clutches of the industrial disputes act and they will be deprived of the protection of the benevolent provisions under the industrial disputes act it is submitted that even the dw 2 rajbir singh has also stated in his evidence that the respondents are employed in the capacity of workmen while after transfer to chopanki they will be given training and shall be assigned the work of supervisor the aforesaid would change the nature of work as stated hereinabove 5 6 it is submitted that after analyzing the evidence on record the relevant labour law and the judgments of the supreme court as well as 14 of the high courts the learned labour court has specifically held that since the service conditions of the workmen had been changed without issuing any notice under section 9a of the industrial disputes act the order of transfer is illegal arbitrary mala fide and victimization therefore the same has been rightly set aside by the learned labour court and the same has been rightly confirmed by the high court 5 7 it is submitted that there are concurrent findings by the learned labour court as well as the high court that the respondents were workmen for the purposes of the industrial disputes act and therefore covered by the industrial disputes act 5 8 now so far as the submission on behalf of the appellant that the writ petition s before the learned single judge of the high court in fact was under article 226 of the constitution of india and not under article 227 and therefore the writ appeal would be maintainable is concerned it is submitted that in fact in the cause title the appellants have stated that the writ petition is under article 227 of the constitution of india and all throughout their writ petition was under article 227 it is submitted therefore that now thereafter it was not open for the appellant to contend that the petition s was were under article 226 and therefore the writ appeal would be maintainable it is submitted that therefore both the learned single judge as well as the division bench have rightly 15 held that the petition s was were in fact under article 227 and therefore the writ appeal s was were not maintainable 5 9 it is further submitted by learned advocate appearing on behalf of the workmen that as such the respondents employees have not been paid salaries after the transfer order dated 13 01 2015 till date and it is very difficult for them to maintain themselves as well as their family members making above submissions it is prayed to dismiss the present appeals 6 heard the learned advocates for the respective parties at length 7 at the outset it is required to be noted that as such there are concurrent findings of fact recorded by the learned labour court as well as learned single judge of the high court that the order of transfer dated 13 01 2015 transferring the respective workman from dewas to chopanki was arbitrary mala fide amounted to victimization unfair labour practice and in violation of section 9a of the industrial disputes act on appreciation of evidence more particularly while considering the deposition of dw 1 manoj thakkar the deposition of dw 2 rajveer singh and depositions of pw 1 kanhaiya lal and pw 2 vijay pratap singh ranawat the learned labour court came to the following findings i that the respective respondents workmen were in the category of workman under section 2 s of the industrial disputes act 16 and therefore they were entitled to the protection under the industrial disputes act ii that by transferring them from dewas to chopanki there would be change of work and therefore there would be change in the conditions of service and therefore the same is in violation of section 9a read with clause 11 of the fourth schedule of the industrial disputes act iii that by transferring the nine employees workmen there will be reduction of workmen at dewas factory iv that at dewas the workmen were employed in the capacity of a workman and at dewas the work of manufacturing precision pipes is done whereas at chopanki manufacturing of nut and bolts is done 7 1 the aforesaid findings by the learned labour court are on appreciation of evidence on record which as such cannot be said to be perverse and or contrary to the evidence on record we have also minutely gone through the findings recorded by the learned labour court as well as the evidence on record it emerge from the evidence on record that the respective respondents employees were employed at dewas and working at dewas for more than 25 to 30 years all of them came to be transferred suddenly from dewas to chopanki which is at a distance of 900 kms from dewas they came to be transferred at the fag 17 end of their service career that the place where they were transferred had no educational and medical facilities and that the place where they were transferred had no residential area within 40 50 kms from the plant with no means of transport 7 2 it also emerges that the number of workers at dewas factory has been reduced by nine by transferring the workmen to chopanki it also emerges that even as admitted by dw 1 and dw 2 the transferred workmen would work in the capacity of supervisor at chopanki and after their transfer to chopanki they will be given training and assigned the work of supervisor 7 3 as observed hereinabove and even the findings recorded by the learned labour court and even it also emerge from the evidence on record that at dewas all of them were workmen as defined in section 2 s of the industrial disputes act and therefore would have a protection under the provisions of the industrial disputes act and after their transfer to chopanki they will have to work in the capacity of supervisor and therefore would be deprived of the beneficial provisions of the industrial disputes act therefore on such transfer from dewas to chopanki the nature of service conditions and the nature of work would be changed therefore in such a case section 9a read with fourth schedule would be attracted section 9a and the fourth schedule reads as under 18 9a notice of change no employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the fourth schedule shall effect such change a without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected or b within twenty one days of giving such notice provided that no notice shall be required for effecting any such change a where the change is effected in pursuance of any settlement or award or b where the workmen likely to be affected by the change are persons to whom the fundamental and supplementary rules civil services classification control and appeal rules civil services temporary service rules revised leave rules civil service regulations civilians in defence services classification control and appeal rules or the indian railway establishment code or any other rules or regulations that may be notified in this behalf by the appropriate government in the official gazette apply the fourth schedule see section 9a conditions of service for change of which notice is to be given 1 wages including the period and mode of payment 2 contribution paid or payable by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force 3 compensatory and other allowances 19 4 hours of work and rest intervals 5 leave with wages and holidays 6 starting alteration or discontinuance of shift working otherwise than in accordance with standing orders 7 classification by grades 8 withdrawal of any customary concession or privilege or change in usage 9 introduction of new rules of discipline or alteration of existing rules except in so far as they are provided in standing orders 10 rationalisation standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen 11 any increases or reduction other than casual in the number of persons employed or to be employed in any occupation or process or department or shift not occasioned by circumstances over which the employer has no control 7 4 in view of the above and from the findings recorded by the learned labour court on the appreciation of evidence on record it is rightly held that the order of transfer dated 13 01 2015 transferring the respective workman from dewas to chopanki which is at about 900 kms away is in violation of section 9a read with fourth schedule of the industrial disputes act and is arbitrary mala fide and victimization as observed above by such transfer their status as workman would be changed to that of supervisor by such a change after their transfer to chopanki and after they work as supervisor they will be deprived of the beneficial 20 provisions of the industrial disputes act and therefore the nature of service conditions service would be changed 7 5 even from the judgment and award passed by the learned labour court as well as the impugned judgment and order passed by the learned single judge it can be seen that the appellant employer has failed to justify the transfer of nine employees from dewas to chopanki which is at a distance of 900 kms and that too at the fag end of their service career every aspect has been dealt with and considered in detail by the learned labour court as well as by the learned single judge of the high court 7 6 now so far as the submission on behalf of the appellant that the respective workmen employees were not workmen and therefore the reference to the learned labour court was not maintainable has no substance at all there are concurrent findings recorded by the learned labour court as well as the learned single judge that the concerned employees were workmen within the definition of section 2 s of the industrial disputes act from the depositions of the witnesses pw 1 pw 2 dw 1 and dw 2 it is established and proved that the concerned employees were workmen and that after their transfer to chopanki they will be given training and they will work as a supervisor 7 7 at this stage it is required to be noted that after the conciliation had failed the dispute which was referred to the learned labour court 21 was whether the transfer is valid and proper the dispute that the concerned employee is a workman or not was not even referred to the learned labour court even no such issue was framed by the learned labour court be that it may as observed hereinabove it has been established and proved that the concerned employees were workmen within the definition of section 2 s of the industrial disputes act and therefore were entitled to the protection under the provisions of the industrial disputes act 7 8 now so far as the submission on behalf of the appellant that so far as the transfer is concerned it is part of the service conditions and therefore section 9a shall not be applicable is concerned the same has no substance the question is not about the transfer only the question is about the consequences of transfer in the present case the nature of work service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at dewas factory for which the fourth schedule and section 9a shall be attracted 7 9 now so far as the submission on behalf of the appellant that the learned single judge of the high court wrongly treated the petition s under article 227 and as such the learned single judge ought to have treated the petition s under article 226 therefore the writ appeal before the learned single judge would have been maintainable is concerned 22 at the outset it is required to be noted that before the learned single judge in the cause title specifically article 227 has been mentioned even in prayer clause no writ of certiorari is sought the prayer is simply to quash and set aside the judgment and award passed by the learned labour court and therefore in the fact situation the division bench has rightly dismissed the writ appeal as not maintainable be that it may even for the sake of submission assuming that we accept the submission that the petition before the learned single judge ought to have been treated as under article 226 and writ appeal would have been maintainable in the facts and circumstances of the case and instead of remanding the matter to the division bench to decide the same afresh we ourselves have decided the entire controversy issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015 therefore we ourselves have decided the entire issues on merits 8 in view of the above and for the reasons stated above we see no reason to interfere with the impugned judgment and award passed by the learned labour court confirmed by the learned single judge of the high court we are in complete agreement with the view taken by the learned labour court as well as the learned single judge holding the 23 order of transfer dated 13 01 2015 transferring the respective workman from dewas to chopanki which is at about 900 kms from the place they were working as illegal mala fide and in violation of section 9a read with fourth schedule of the industrial disputes act 8 1 consequently all these appeals deserve to be dismissed and are accordingly dismissed the appellant is directed to comply with the judgment and award passed by the learned labour court confirmed by the learned single judge of the high court all the concerned workmen shall be entitled to the consequential benefits including the arrears of salary etc as if they were not transferred from dewas and continued to work at dewas and whatever benefits which may be available to the respective workmen including the arrears of salary wages retirement benefits etc shall be paid to the concerned workman within a period of four weeks from today all these appeals are accordingly dismissed with costs which is quantified at rs 25 000 qua each workman also to be paid to the concerned workman within a period of four weeks from today j m r shah new delhi j october 26 2021 a s bopanna 24 25 reportable in the supreme court of india civil appellate jurisdiction civil appeal nos 5829 5830 of 2021 caparo engineering india ltd appellant s versus ummed singh lodhi and anr respondent s with civil appeal nos 5831 5832 of 2021 m s caparo engineering india ltd appellant s versus kanhaiyalal madaria and anr respondent s with civil appeal nos 5845 5846 of 2021 m s caparo engineering india ltd appellant s versus mohanlal and anr respondent s with civil appeal nos 5843 5844 of 2021 caparo engineering india ltd appellant s versus dileep chouhan and anr respondent s 1 with civil appeal nos 5841 5842 of 2021 caparo engineering india ltd appellant s versus jugal kishore and anr respondent s with civil appeal nos 5839 5840 of 2021 caparo engineering india ltd appellant s versus parmeshwar and anr respondent s with civil appeal nos 5837 5838 of 2021 m s caparo engineering india ltd appellant s versus makhanlal and anr respondent s with civil appeal nos 5835 5836 of 2021 caparo engineering india ltd appellant s versus rajendra prasad and anr respondent s 2 and civil appeal nos 5833 5834 of 2021 m s caparo engineering india ltd appellant s versus surendra singh tomar and anr respondent s j u d g m e n t m r shah j 1 as common question of law and issues have been raised in this group of appeals as such arising out of the impugned common judgment and order passed by the high court all these appeals are being decided and disposed of together by this common judgment and order 2 feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the high court of madhya pradesh bench at indore in mp no 245 of 2019 and other allied petitions by which the high court has dismissed the said petitions preferred by the appellant herein employer hereinafter referred to as employer and has confirmed the respective judgment and award passed by the labour court dewas dated 13 11 2018 by which the labour court allowed the said reference in favour of the respondents employees by declaring 3 their order of transfer dated 13 01 2015 as illegal and void the employer has preferred the present appeals 3 the brief facts in nutshell are as under 3 1 that the respective workmen were employed and working in the dewas factory of the appellant that vide order dated 13 01 2015 all of them came to be transferred to chopanki district alwar which is 900 kms away from dewas the respective workmen through their union raised the industrial dispute before competent authority and on failure of the conciliation proceedings a reference was made to the labour court the following question was referred to the labour court whether the transfer of shri kanhaiyalal by the non applicant is valid and proper if not then what relief can be granted to him and what directions need to be given to the employer in this respect similar dispute was referred with respect to the each workman 3 2 the respective workmen filed their statement of claim before the labour court it was the case on behalf of the workmen that the transfer was done malafidely with the intention to reduce the number of workmen in the dewas factory that the employer pressurized the workmen to resign and on refusal the employer transferred them without any justifiable reason to chopanki at rajasthan which is 900 kms away such a transfer amounts to the illegal change under section 9a of the industrial disputes act 1947 hereinafter referred to as i d act that 4 all the family members and their relatives are residing at dewas and the facilities which are available at dewas are not available at chopanki and at chopanki within the radius of 40 50 kms neither there is any residential area nor any means of transport are available and that their services is also not required at chopanki factory it was also the case on behalf of the respective workmen that at dewas precision pipes are manufactured whereas at chopanki the work of manufacturing of nut and bolt is done and the transfer will change the nature of work therefore it was prayed to declare the transfer as illegal and void 3 3 the employer filed the reply to the statement of claim before the labour court it was specifically denied that the transfer was done to reduce the number of workmen at dewas it was submitted that no unfair labour practice was adopted and compliance of section 9a of the i d act was not necessary it was also denied that the workmen were pressurized to tender resignation a plea was raised that since there was continuous reduction in production at dewas and the staff had become surplus which was not required and therefore to continue the employment of the concerned workmen they had been transferred as per their service conditions and no notice in this regard under section 9a of the i d act was required it was also stated that at chopanki factory all the facilities are available 5 3 4 both the parties led the evidences the workmen examined pw 1 kanhaiya lal and pw 2 vijay pratap singh ranawat in support of their case plea and the employer examined dw 1 manoj thakkar dw 2 rajveer singh and dw 3 mukesh kulshreshtha both the parties also brought on record the documentary evidences in support of their respective cases 3 5 that on appreciation of evidences the labour court specifically found that employer could not prove that there was continuous reduction of production at dewas factory and that the staff had proportionately become surplus the labour court also found that the workmen nine in numbers were transferred from dewas with the intention to reduce the number of persons employed at dewas and such an act was covered by clause 11 of schedule 4 of the i d act and since no notice of change was given the transfer orders are in violation of section 9a of the i d act the labour court also specifically found on appreciation of evidence that transfer will change the nature of work since the workmen were employed as labourers at dewas and on transfer at chopanki they will be working as supervisor consequently the labour court found the order of transfer as null and void and consequently the labour court set aside the same 6 3 6 feeling aggrieved and dissatisfied with the judgment and award passed by the labour court the employer management preferred writ petitions under article 227 of the constitution of india before the high court and by the impugned common judgment and order the high court has dismissed the said writ petitions treating the said writ petitions under article 227 of the constitution of india feeling aggrieved and dissatisfied with the judgment and order passed by the learned single judge the appellant preferred writ appeal s before the division bench of the high court and the division bench has dismissed the said appeal s as not maintainable observing that the writ petition s before the learned single judge was were under article 227 of the constitution of india 3 7 feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the high court dismissing the writ petitions and confirming the respective judgments and awards passed by the labour court declaring the order of transfer dated 13 01 2015 as illegal null and void and in breach of the provisions of the i d act more particularly section 9a of the i d act the management employer has preferred the present appeals that the appellant has also challenged the order passed by the division bench dismissing the writ appeal s as not maintainable 7 4 shri jaideep gupta learned senior advocate has appeared on behalf of the appellant employer and shri niraj sharma learned advocate has appeared on behalf of the respective respondents workmen 4 1 shri gupta learned senior advocate appearing on behalf of the management employer has vehemently submitted that in the facts and circumstances of the case the high court has committed a grave error in treating the writ petitions under article 227 of the constitution of india it is submitted that as such the awards were challenged by the management by way of writ petitions clearly under article 226 of the constitution 4 2 it is submitted that even the prayer in the writ petitions was for an appropriate writ direction or order to quash and set aside the respective awards it is submitted that in fact initially article 226 was mentioned however due to the objections raised by the registry the appellant was compelled to amend the writ petition and mention under article 227 of the constitution it is submitted that as such even subsequently the appellant filed a writ appeal before the division bench of the high court challenging the judgment and award passed by the learned single judge however the division bench dismissed the writ appeals as not maintainable treating the writ petitions before the learned single judge under article 227 of the constitution it is submitted that as such the writ 8 petitions before the high court were on the face of it petitions under article 226 of the constitution even as can be seen from the material averments made in the writ petitions 4 3 shri gupta learned senior advocate appearing on behalf of the employer has further submitted that in order to determine whether a petition is under article 226 or under article 227 of the constitution what is to be looked at is the nature of jurisdiction invoked and the relief sought therein it is submitted that neither the provision cited in the cause title nor the provision mentioned by the learned single judge while exercising his power were determinative of the true nature of the application and order thereon heavy reliance is placed on the decision of this court in the case of ashok k jha and ors vs garden silk mills limited and anr 2009 10 scc 584 paragraphs 27 to 37 4 4 it is submitted that as such in several subsequent judgments with reference to awards of labour courts the petitions were held to be primarily under article 226 and not under article 227 and therefore amenable to the appellate jurisdiction of the division bench of high court in support of his above submission he has relied upon the following decisions of the madhya pradesh high court as well as of the bombay high court shaillendra kumar vs divisional forest officer and anr 2017 scc online mp 1514 yogendra singh chouhan vs 9 managing director intas pharmaceuticals ltd and anr wa no 46 of 2021 state of madhya pradesh and anr vs patiram wa no 1932 of 2019 2020 scc online mp 3660 and murari lal chhari and ors vs munishwar singh tomar and anr in wa no 1191 of 2019 2019 scc online mp 4559 4 5 it is submitted that as such by not treating considering the writ petitions by the learned single judge under article 226 of the constitution the valuable right available to the employer of appeal before the division bench has been taken away therefore it is requested to remit the matter back to the division bench of the high court to decide the writ appeals in accordance with law and on its own merits it is further submitted that even on merits also both the labour court as well as the high court have erred in declaring the order of transfer as illegal and void and in violation of section 9a of the i d act 4 6 it is submitted that the labour court as well as the learned single judge has materially erred in holding that order of transfer amounted to change of terms and conditions of service requiring a notice under section 9a and in the absence thereof the said order is liable to be set aside it is submitted that as such an order of transfer does not bring about a change in the terms and conditions of service within the meaning of section 9a read with schedule 4 thereof heavy reliance is placed on the decision of the madhya pradesh high court in the case of 10 president vs director rajasthan patrika pvt ltd wp no 12934 of 2015 2015 4 mplj 595 4 7 it is further submitted that clause 11 of schedule 4 is not at all relevant when considering transfer orders it is submitted that the purpose of the transfer order was not to bring about a reduction in the establishment in question it is submitted that to bring a case within the change of terms and conditions of service within the meaning of section 9a it is necessary for the workmen to demonstrate that they have been adversely affected by the reduction reliance is placed on the decision of this court in the case of hindustan lever ltd vs ram mohan ray and ors 1973 4 scc 141 harmohinder singh vs kharga canteen ambala cantt 2001 5 scc 540 and the decision of the bombay high court in the case of associated cement companies ltd vs associated cement staff union 2009 scc online bom 2132 4 8 it is further submitted on behalf of the employer that even otherwise the learned single judge has failed to take into account the contention that the employees are not workmen 4 9 making above submissions and relying upon the above decisions it is prayed to allow the present appeals and quash and set aside the impugned judgments and orders passed by the division bench of the 11 high court learned single judge of the high court and the respective judgments and awards passed by the labour court 5 all these appeals are vehemently opposed by shri niraj sharma learned advocate appearing on behalf of the respective workmen 5 1 it is submitted by shri sharma learned advocate appearing on behalf of the respective workman that in the facts and circumstances of the case no error has been committed by the learned labour court as well as the high court in holding the order of transfer dated 13 01 2015 as illegal invalid and in violation of the provisions of section 9a of the industrial disputes act read with fourth schedule 5 2 it is submitted that the findings recorded by the learned labour court holding the order of transfer dated 13 01 2015 as illegal arbitrary mala fide and in violation of the provisions of section 9a of the industrial disputes act are on appreciation of evidence which the high court has rightly not interfered with in exercise of the powers under article 227 of the constitution of india 5 3 it is vehemently submitted by the learned advocate appearing on behalf of the workmen that as such except 2 3 workmen rest of the workmen were at the fag end of their service career and were transferred to chopanki which is at a distance of about 900 kms it is submitted that all the respective workman had put about 25 to 30 years of service at the time of their transfer and were at the fag end of their 12 service it is submitted that even one of them has retired having attained the age of 60 years it is submitted that the order of transfer dated 13 01 2015 transferring the respective workman form dewas to chopanki and that too at the fag end of their service career amounted to an arbitrary and unfair labour practice by creating a situation in which the workmen were left with no other option except to leave their employment it is submitted that it was in fact a way to retrench the workmen without following the mandatory provisions of law it is further submitted that even sudden transfer of the workmen to a different state and that too at a distance of about 900 kms from their place would cause great hardship as the place where they were transferred had no educational and medical facilities their school going children and old aged parents were to be disturbed and uprooted and the place where they were transferred had no residential area within 40 50 kms form the plant with no means of transport 5 4 it is submitted by shri sharma learned advocate on behalf of the workmen that in view of the above situation the transfer amounted to victimization of the employees by forcing them to quit their jobs it is further submitted that on appreciation of evidence on record the learned labour court had rightly come to the conclusion that by transferring the respective workman to chopanki would be in violation of section 9a read with fourth schedule in as much as by transferring them to chopanki 13 would change the nature of work without issuing any notice under section 9a of the industrial disputes act 5 5 it is submitted that even dw 1 manoj thakkar had admitted in cross examination that by transferring the respective workman from dewas to chopanki number of workers at dewas factory would be reduced it is submitted that he has also admitted that a transferred workmen would work in the capacity of supervisor at chopanki it is submitted that the respective workman was a workman at dewas and as admitted by the employer s witness at chopanki after giving training they will have to work as supervisor it is submitted that therefore transfer of the workmen would amount to depriving them of the beneficial provisions of the industrial disputes act it is submitted that once at the transferred place they will work as a supervisor thereafter they will be out of the clutches of the industrial disputes act and they will be deprived of the protection of the benevolent provisions under the industrial disputes act it is submitted that even the dw 2 rajbir singh has also stated in his evidence that the respondents are employed in the capacity of workmen while after transfer to chopanki they will be given training and shall be assigned the work of supervisor the aforesaid would change the nature of work as stated hereinabove 5 6 it is submitted that after analyzing the evidence on record the relevant labour law and the judgments of the supreme court as well as 14 of the high courts the learned labour court has specifically held that since the service conditions of the workmen had been changed without issuing any notice under section 9a of the industrial disputes act the order of transfer is illegal arbitrary mala fide and victimization therefore the same has been rightly set aside by the learned labour court and the same has been rightly confirmed by the high court 5 7 it is submitted that there are concurrent findings by the learned labour court as well as the high court that the respondents were workmen for the purposes of the industrial disputes act and therefore covered by the industrial disputes act 5 8 now so far as the submission on behalf of the appellant that the writ petition s before the learned single judge of the high court in fact was under article 226 of the constitution of india and not under article 227 and therefore the writ appeal would be maintainable is concerned it is submitted that in fact in the cause title the appellants have stated that the writ petition is under article 227 of the constitution of india and all throughout their writ petition was under article 227 it is submitted therefore that now thereafter it was not open for the appellant to contend that the petition s was were under article 226 and therefore the writ appeal would be maintainable it is submitted that therefore both the learned single judge as well as the division bench have rightly 15 held that the petition s was were in fact under article 227 and therefore the writ appeal s was were not maintainable 5 9 it is further submitted by learned advocate appearing on behalf of the workmen that as such the respondents employees have not been paid salaries after the transfer order dated 13 01 2015 till date and it is very difficult for them to maintain themselves as well as their family members making above submissions it is prayed to dismiss the present appeals 6 heard the learned advocates for the respective parties at length 7 at the outset it is required to be noted that as such there are concurrent findings of fact recorded by the learned labour court as well as learned single judge of the high court that the order of transfer dated 13 01 2015 transferring the respective workman from dewas to chopanki was arbitrary mala fide amounted to victimization unfair labour practice and in violation of section 9a of the industrial disputes act on appreciation of evidence more particularly while considering the deposition of dw 1 manoj thakkar the deposition of dw 2 rajveer singh and depositions of pw 1 kanhaiya lal and pw 2 vijay pratap singh ranawat the learned labour court came to the following findings i that the respective respondents workmen were in the category of workman under section 2 s of the industrial disputes act 16 and therefore they were entitled to the protection under the industrial disputes act ii that by transferring them from dewas to chopanki there would be change of work and therefore there would be change in the conditions of service and therefore the same is in violation of section 9a read with clause 11 of the fourth schedule of the industrial disputes act iii that by transferring the nine employees workmen there will be reduction of workmen at dewas factory iv that at dewas the workmen were employed in the capacity of a workman and at dewas the work of manufacturing precision pipes is done whereas at chopanki manufacturing of nut and bolts is done 7 1 the aforesaid findings by the learned labour court are on appreciation of evidence on record which as such cannot be said to be perverse and or contrary to the evidence on record we have also minutely gone through the findings recorded by the learned labour court as well as the evidence on record it emerge from the evidence on record that the respective respondents employees were employed at dewas and working at dewas for more than 25 to 30 years all of them came to be transferred suddenly from dewas to chopanki which is at a distance of 900 kms from dewas they came to be transferred at the fag 17 end of their service career that the place where they were transferred had no educational and medical facilities and that the place where they were transferred had no residential area within 40 50 kms from the plant with no means of transport 7 2 it also emerges that the number of workers at dewas factory has been reduced by nine by transferring the workmen to chopanki it also emerges that even as admitted by dw 1 and dw 2 the transferred workmen would work in the capacity of supervisor at chopanki and after their transfer to chopanki they will be given training and assigned the work of supervisor 7 3 as observed hereinabove and even the findings recorded by the learned labour court and even it also emerge from the evidence on record that at dewas all of them were workmen as defined in section 2 s of the industrial disputes act and therefore would have a protection under the provisions of the industrial disputes act and after their transfer to chopanki they will have to work in the capacity of supervisor and therefore would be deprived of the beneficial provisions of the industrial disputes act therefore on such transfer from dewas to chopanki the nature of service conditions and the nature of work would be changed therefore in such a case section 9a read with fourth schedule would be attracted section 9a and the fourth schedule reads as under 18 9a notice of change no employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the fourth schedule shall effect such change a without giving to the workman likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected or b within twenty one days of giving such notice provided that no notice shall be required for effecting any such change a where the change is effected in pursuance of any settlement or award or b where the workmen likely to be affected by the change are persons to whom the fundamental and supplementary rules civil services classification control and appeal rules civil services temporary service rules revised leave rules civil service regulations civilians in defence services classification control and appeal rules or the indian railway establishment code or any other rules or regulations that may be notified in this behalf by the appropriate government in the official gazette apply the fourth schedule see section 9a conditions of service for change of which notice is to be given 1 wages including the period and mode of payment 2 contribution paid or payable by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force 3 compensatory and other allowances 19 4 hours of work and rest intervals 5 leave with wages and holidays 6 starting alteration or discontinuance of shift working otherwise than in accordance with standing orders 7 classification by grades 8 withdrawal of any customary concession or privilege or change in usage 9 introduction of new rules of discipline or alteration of existing rules except in so far as they are provided in standing orders 10 rationalisation standardisation or improvement of plant or technique which is likely to lead to retrenchment of workmen 11 any increases or reduction other than casual in the number of persons employed or to be employed in any occupation or process or department or shift not occasioned by circumstances over which the employer has no control 7 4 in view of the above and from the findings recorded by the learned labour court on the appreciation of evidence on record it is rightly held that the order of transfer dated 13 01 2015 transferring the respective workman from dewas to chopanki which is at about 900 kms away is in violation of section 9a read with fourth schedule of the industrial disputes act and is arbitrary mala fide and victimization as observed above by such transfer their status as workman would be changed to that of supervisor by such a change after their transfer to chopanki and after they work as supervisor they will be deprived of the beneficial 20 provisions of the industrial disputes act and therefore the nature of service conditions service would be changed 7 5 even from the judgment and award passed by the learned labour court as well as the impugned judgment and order passed by the learned single judge it can be seen that the appellant employer has failed to justify the transfer of nine employees from dewas to chopanki which is at a distance of 900 kms and that too at the fag end of their service career every aspect has been dealt with and considered in detail by the learned labour court as well as by the learned single judge of the high court 7 6 now so far as the submission on behalf of the appellant that the respective workmen employees were not workmen and therefore the reference to the learned labour court was not maintainable has no substance at all there are concurrent findings recorded by the learned labour court as well as the learned single judge that the concerned employees were workmen within the definition of section 2 s of the industrial disputes act from the depositions of the witnesses pw 1 pw 2 dw 1 and dw 2 it is established and proved that the concerned employees were workmen and that after their transfer to chopanki they will be given training and they will work as a supervisor 7 7 at this stage it is required to be noted that after the conciliation had failed the dispute which was referred to the learned labour court 21 was whether the transfer is valid and proper the dispute that the concerned employee is a workman or not was not even referred to the learned labour court even no such issue was framed by the learned labour court be that it may as observed hereinabove it has been established and proved that the concerned employees were workmen within the definition of section 2 s of the industrial disputes act and therefore were entitled to the protection under the provisions of the industrial disputes act 7 8 now so far as the submission on behalf of the appellant that so far as the transfer is concerned it is part of the service conditions and therefore section 9a shall not be applicable is concerned the same has no substance the question is not about the transfer only the question is about the consequences of transfer in the present case the nature of work service conditions would be changed and the consequences of transfer would result in the change of service conditions and the reduction of employees at dewas factory for which the fourth schedule and section 9a shall be attracted 7 9 now so far as the submission on behalf of the appellant that the learned single judge of the high court wrongly treated the petition s under article 227 and as such the learned single judge ought to have treated the petition s under article 226 therefore the writ appeal before the learned single judge would have been maintainable is concerned 22 at the outset it is required to be noted that before the learned single judge in the cause title specifically article 227 has been mentioned even in prayer clause no writ of certiorari is sought the prayer is simply to quash and set aside the judgment and award passed by the learned labour court and therefore in the fact situation the division bench has rightly dismissed the writ appeal as not maintainable be that it may even for the sake of submission assuming that we accept the submission that the petition before the learned single judge ought to have been treated as under article 226 and writ appeal would have been maintainable in the facts and circumstances of the case and instead of remanding the matter to the division bench to decide the same afresh we ourselves have decided the entire controversy issues on merits considering the fact that the order of transfer is of 2015 and that most of the employees have by now retired or they are about to retire on attaining the age of superannuation and that it is stated that they are not paid the salaries since 2015 therefore we ourselves have decided the entire issues on merits 8 in view of the above and for the reasons stated above we see no reason to interfere with the impugned judgment and award passed by the learned labour court confirmed by the learned single judge of the high court we are in complete agreement with the view taken by the learned labour court as well as the learned single judge holding the 23 order of transfer dated 13 01 2015 transferring the respective workman from dewas to chopanki which is at about 900 kms from the place they were working as illegal mala fide and in violation of section 9a read with fourth schedule of the industrial disputes act 8 1 consequently all these appeals deserve to be dismissed and are accordingly dismissed the appellant is directed to comply with the judgment and award passed by the learned labour court confirmed by the learned single judge of the high court all the concerned workmen shall be entitled to the consequential benefits including the arrears of salary etc as if they were not transferred from dewas and continued to work at dewas and whatever benefits which may be available to the respective workmen including the arrears of salary wages retirement benefits etc shall be paid to the concerned workman within a period of four weeks from today all these appeals are accordingly dismissed with costs which is quantified at rs 25 000 qua each workman also to be paid to the concerned workman within a period of four weeks from today j m r shah new delhi j october 26 2021 a s bopanna 24 25 1500 2021_c a no 000925 000926 2021 the high court cag cag 2019 09 09 wentworth v bullen angadi v y s a all taxes due and payable by the concessionaire b all connectivity charges non fare revenue share due and payable to huda under this concession contract c all accrued debt service payment d any payments and damages due and payable by the concessionaire to huda pursuant to this concession contract including termination claims e all accrued o m expenses f any other payments required to be made under this concession contract and g balance if any on the instructions of the concessionaire 18 4 the instructions contained in the escrow concession contract shall remain in full force and effect until the obligations set forth in sub article 18 3 have been discharged 38 article 24 provides for termination article 24 1 1 sets down events of default on the part of the concessionaire according to article 24 4 24 4 upon termination by huda on account of occurrence of concessionaire event of default during the operations period the huda shall take over the complete system all project assets huda shall pay the lenders of the project as per financial documents an amount equal to 80 of debt due as termination payment no termination payment shall be due or payable on account of concessionaire s default occurring prior to cod 39 article 24 5 2 provides for the consequences of termination by the concessionaire due to a default by huda 24 5 2 upon termination by the concessionaire on account of an huda event of default huda shall take over the complete system all project assets and the concessionaire shalt be entitled to receive from huda by way of termination payment a sum equal to a debt due 42 part c b 110 of the adjusted equity accordingly where the concession agreement has been terminated by huda on account of a default by the concessionaire huda was required to take over the complete project and assets and to pay to the lenders of the project as per the financing documents an amount equal to 80 per cent of the debt due as termination payment where on the other hand the termination is by the concessionaire on account of a default by huda the concessionaire was entitled to receive by way of a termination payment a sum equal to a the debt due and b 110 per cent of the adjusted equity article 24 7 which provides for the termination payments reads as follows 24 7 termination payments the termination payment pursuant to this concession contract shall become due and payable to the concessionaire by huda within thirty days of a demand being made by the concessionaire with the necessary particulars duly certified by the statutory auditors if huda fails to disburse the full termination payment within 30 thirty days the amount remaining unpaid shall be disbursed along with interest an annualised rate of sbi plr plus two per cent for the period of delay on such amount 40 article 30 of the concession agreement provides for dispute resolution article 30 2 contains an arbitration agreement which reads as follows 30 2 arbitration 30 2 1 dispute due for arbitration disputes or differences shall be due for arbitration only if all the conditions in sub article 30 1 are fulfilled 43 part d d terms of the consent order dated 20 september 2019 passed by the high court 41 pursuant to the petition filed under section 241 2 read with section 242 of the act of 2013 before the nclt the board of il fs was superseded on 1 october 2018 with a new board appointed on the recommendations of the central government on 6 december 2018 an fir no 253 was registered by the economic offences wing as pointed out by the solicitor general rmgl and rmgsl were named as accused nos 21 and 22 in the fir the allegation being in respect of the procuring of fake invoices as a result of which the cost of projects implemented were alleged to be higher than those implemented by dmrc resulting in the rapid metro link projects at gurgaon incurring losses rmgl and rmgsl which belong to the il fs group of companies were thus classified as red entities on 4 february 2019 justice d k jain was appointed by the nclt to supervise the resolution process for the il fs group on 7 june 2019 rmgl issued a notice for the termination of the concession agreement dated 9 december 2009 to hsvp under article 24 5 1 with the period of notice being 90 days a similar notice of termination was issued by rmgsl in terms of article 32 5 1 of concession agreement dated 3 january 2013 rmgl and rmgsl addressed communications on 1 august 2019 to hsvp for completing the handover of the rapid metro link projects on 26 august 2019 hmrtc issued a notice of termination to rmgl in terms of the articles 24 1 and 24 2 of the concession agreement dated 9 december 2009 a similar notice was issued to rmgsl in the interim justice d k jain was 44 part d moved by rmgl and rmsl to grant his approval to the handing over of possession of the rapid metro link projects by his order dated 6 september 2019 justice d k jain permitted rmgl and rmgsl to handover possession and control of the rapid metro link projects to hsvp on or before 9 september 2019 hmrtc and hsvp then moved the high court in writ proceedings under article 226 of the constitution seeking i writ of certiorari for quashing the notices of termination dated 7 june 2019 on the ground that there was no permission of the competent authority appointed by the nclat and that it was against the public interest because the rapid metro project of gurgaon which was operational since 2013 would come to a halt on 8 september 2019 and ii a writ of mandamus directing that the notice period of 90 days would commence only from the grant of the permission by the nclat 42 taking note of the order passed by justice d k jain the high court by its order dated 6 september 2019 directed rmgl and rmgsl to continue the operation of the rapid metro rail till the midnight of 9 september 2019 on 9 september 2019 the high court observed that the dispute between the parties would have to be resolved by negotiations and hence the order of stay under which the rapid metro rail projects were to be continued in operation by rmgl and rmgsl was continued till midnight of 17 september 2019 from the order of the high court dated 9 september 2019 it is evident that rmgl and rmgsl while 45 part d referring to the terms of the proposed discussion which hmrtc hsvp catalogued inter alia a a time bound handover of the project to hsvp and corresponding commitment for taking it over by hsvp and b a commitment to pay at least 80 per cent of the debt due as termination payment to rmgl and rmgsl by hsvp 43 on 18 september 2019 the appellants proposed that they would continue to operate the metro link projects until 16 october 2019 during which period the debt due under the financing documents in terms of the concession agreements may be determined by an auditor to be appointed by the high court further the process for transfer of the rapid metro link projects was to be supervised by two former judges of the high court both the appellants specifically stated that this proposal was subject to the condition that once the debt due is determined hsvp must deposit 80 per cent of the debt due as determined in an escrow account in terms of the concession agreement escrow agreement and substitution agreement this proposal it was clarified was made to safeguard the interest of the public sector lenders of the projects responding to the above proposal of the appellants hmrtc and hsvp specifically stated in their written responses that i an agreement had been entered into with dmrc on 16 september 2019 for operation and maintenance of the rapid metro lines 46 part d ii as regards the ascertainment of the debt due this was linked to the definition of the expression under concession agreements iii hmrtc hsvp agreed with the proposal of rmgl rmgsl that an auditor may be appointed to ascertain the actual figures and stated that the cag may be entrusted with the assignment to ascertain financial aspects and determining the over invoicing of the projects and iv the deposit of 80 per cent of the debt due as determined in an escrow account would depend on the outcome of the report of the auditor and hmrtc and hsvp commit and confirm to adhere to the directions as would be passed by the hon ble high court or nclat or any other court or any other order under any other legal proceedings passed by any other competent authority in terms of the concession agreements 44 the above course of events indicates that the entire order which was passed by the high court on 20 september 2019 was the outcome of sustained negotiations which took place between rmgl and rmgsl on the one hand and hmrtc and hsvp on the other commencing from the invocation of the writ jurisdiction under article 226 now it is significant to note that recourse to the proceedings under article 226 was taken by hmrtc hsvp which challenged the termination notice and sought the continuation of the operation of the rapid metro lines at gurgaon which were under imminent threat of closure once the notice period expired on 8 september 2019 the narration of events would make it abundantly clear that initially as a result of the order of stay granted by the high court on 6 september 47 part d 2019 and thereafter consequent upon mutual discussions rmgl rmgsl agreed to operate the rapid metro link projects until 16 october 2019 within which period the handover to dmrc would take place equally the concerns by rmgl rmgsl as concessionaires was that in terms of the concession agreements 80 per cent of the debt due had to be deposited in the escrow account in terms of the provisions contained in article 24 4 in concession agreement dated 9 december 2009 all the parties specifically agreed before the high court that there would be a reference to the cag for conducting an audit for the purpose of determining the debt due the high court by its order dated 20 september 2019 issued directions which were specifically noted to be emanating from the consensus arrived at in the presence of senior officers of both the parties namely mr d suresh ias managing director hmrtc chief administrator hsvp mr rajiv banga managing director rmgl and director rmgsl the consensual order passed by the high court envisaged that i rmgl and rmgsl would continue to operate the rapid metro lines for 30 days from 16 september 2019 ii the transfer of the rapid metro lines would be overseen by two former judges of the high court iii the debt due as defined under the concession agreements would be determined under the auspices of the cag who would appoint a team of auditors for the financial audit of the debt due and for examining the scope of 48 part d the audit of the debt due audited by the hsvp with the assistance of the auditors appointed by the parties to the lis iv the process of audit would be completed within 30 days and 80 per cent of the debt due determined by the audit report shall be deposited by hsvp in an escrow account which would be subject to the orders of the nclat or any other competent statutory authority within a period of 30 days of the receipt of the report and v the rest of the disputes between the parties arising out the audit report would be agitated and decided in arbitration proceedings which was a mode already provided in the concession agreements 45 clause ii of the directions contained in the high court s consent order dated 20 september 2019 makes it abundantly clear that the audit team appointed by cag was to conduct a financial audit of the debt due and to examine the scope of the audit the next important aspect of the consent order is the time bound process which was envisaged with the audit being completed within 30 days and 80 per cent of the debt due being deposited within 30 days after the receipt of the audit report the final aspect which needs to be emphasized is that the rest of the disputes between the parties arising out of the audit report were to be agitated in arbitration 46 this would leave no manner of doubt that parties clearly understood that once the debt due was ascertained in terms of the audit report 80 per cent would be deposited by hsvp in the escrow account while the rest of the disputes in respect of the audit report would be governed by arbitration a time of 30 days was 49 part d envisaged for deposit the amount in escrow account upon the receipt of the audit report subsequent to the order dated 20 september 2019 another order was passed by the high court on 4 october 2019 clause ii of the earlier order was substituted as substituted it was envisaged that the auditors would also have to examine the scope of the audit of the debt due suggested by hsvp hence cag would also examine the scope of the audit of the debt due suggested by hsvp in terms of the concession agreements moreover it was envisaged that the rest of the dispute either arising out of the cag report the validity of the termination notices issued by both the parties and any past or future claims liabilities inter se would be agitated in arbitration on 15 october 2019 there was a further clarification by the division bench that cag would examine the scope of the audit of the debt due suggested by both the parties in terms of the concession agreements thus it was understood by both the parties that the determination of the debt due would be in terms of the concession agreements cag specifically placed before the high court its understanding of the role to be performed by it in its written statement before the high court on 19 november 2019 cag stated that it had decided to appoint an auditor for the financial audit of debt due as on the transfer date the terms as envisaged define the scope of the work of the auditor to be i verification of the debt due with reference to the terms and conditions of the concession agreements and all financing agreements documents which have a bearing on the computation of the debt due 50 part e ii verification that all funds constituting the financial package both debt and equity for meeting the capital cost had been credited and received in the escrow account iii verification that the funds of the financial package were used for the project assets as defined in the concession agreements and their impact on the debt due iv verification that all non fare revenues were duly accounted and that all fare revenues were deposited in the escrow account v verification that the amounts standing to the credit in the escrow account had been appropriated in the order prescribed in the escrow agreement vi verification that all other receipts and payments were routed through the escrow account together with the review of all other bank accounts maintained operated by the appellants and vii information in the annual reports of the appellants was arrived at by following the applicable standards and guidelines e obligations of hmrtc and hsvp to pay the debt due 47 hmrtc and hsvp as well as the appellants were apprised at all material times of the work of audit being handed over by cag to a firm appointed by it on 24 february 2020 a draft report of the financial audit of the debt due of rmgl rmgsl was sent to the principal secretary to the government of haryana in the department of town and country planning hmrtc was requested to 51 part e communicate its response on behalf of the state government so that it could be incorporated in the report on 27 february 2020 hsvp sought four weeks at the least in view of the ongoing session of the state legislative assembly the accountant general audit haryana followed up the earlier email by subsequent communications dated 18 march 2020 and 22 april 2020 by the later communication on behalf of cag the response of the state government was requested to be furnished before the deadline of 29 april 2020 failing which the report would be finalized without including their response hmrtc hsvp and the state government however did not furnish their response to the draft report eventually the audit reports were finalised in respect of the debt due under the concession agreements with rmgl rmgsl respectively and were placed before the high court in sealed cover following the opening of the sealed cover on an application by the appellants an objection was raised in the form of an affidavit by hmrtc on 10 october 2020 as noticed in the earlier part of this judgment according to hmrtc the audit report was inconclusive and incomplete since several aspects which will have an impact on the debt due remain to be determined now at this stage it is necessary to note that the auditors stated that the scope of the audit as decided by cag was submitted to the high court on 19 november 2019 and it was intimated that only those issues which are relevant and related to examining the debt due under the concession agreements would be examined hence other issues mentioned by hmrtc such as encumbrances and liabilities on the metro project shareholding share in the valuation of the assets of the concessionaire change of shareholding rights criminal acts and liabilities would 52 part e require forensic and technical audit it is important to note that such audits are ongoing independently the audit conducted by the auditors appointed by the cag herein was limited to examining the debt due as defined in the concession agreements while arriving at the principal and interest component of the debt due the auditors indicated that other matters had come to their attention which can have a significant impact on the debt due and that the report was subject to the outcome of such matters these included i an entity specific forensic audit which is conducted by the lenders ii the order passed by nclt on 1 january 2019 for reopening and recasting the accounts of il fs and two of its subsidiaries intl and ifim iii the initiation by the new board in january 2019 of third party forensic examination for the period between april 2013 to september 2018 in relation to certain companies of the group and iv the sub contracting by irl of nine packages to various related and unrelated parties including companies with irregularities pointed in a notice to show cause issued by the income tax department on 15 november 2018 indeed the submission of the learned solicitor general that the audit under the auspices of the cag is incomplete and inconclusive is based on the above statements contained in the audit report noticing other matters which may have a bearing on the debt due 53 part e 48 now the issue before the court in this backdrop is whether the consequences envisaged in the consent order of the high court dated 20 september 2019 can stand obviated on the above grounds at the very outset it is important to note that the fir in respect of il fs group of companies was lodged on 6 december 2018 the termination notices of june and august 2019 and the institution of the writ proceedings took place thereafter evidently the appellants on the one hand as well as hsvp hmrtc on the other were conscious of the developments which were taking place in respect of the il fs group of companies in the proceedings before justice d k jain on 19 august 2019 when the consent order was passed before the high court hsvp was represented by counsel as well as the chief administrator of hsvp and managing director of hmrtc who were also present the financial institutions including andhra bank were also in appearance the consent order before the high court on 20 september 2019 was also preceded by mutual discussions between the parties and the exchange of written proposals which have been referred to expressly by the high court the consent order of the high court envisages i the manner in which the expression debt due would be determined ii the manner in which the scope of the audit report would be prescribed and iii the consequence of the determination by the auditors to be appointed by the cag 49 clause ii of the order dated 20 september 2019 makes it abundantly clear that the basic purpose underlying the entrustment of the reference to the cag was 54 part e the determination of the debt due as defined under the concession contract the high court it must be emphasized was seized of a proceeding under article 226 of the constitution and its writ jurisdiction had been invoked to challenge the notices of termination issued by rmgl and rmgsl and for ensuring that the consequence which would emanate on the expiry of the notice period of 90 days by the cessation of the metro operations could be prevented by the judicial intervention in the course of the public law jurisdiction the issuance of a notice of termination the consequences which would ensue and the resolution of disputes is specifically provided in the arbitration agreement between the parties which is an intrinsic part of the concession agreements hence there was an evident interface between this element of public interest on the one hand and the contractual rights of the parties to the concession agreements on the other however when hmrtc and hsvp moved the high court under article 226 they did so in view of the impending threat which was looming large on the horizon of the rapid metro operations being brought to a standstill as a result of the proximate expiry of the notice of 90 days preceding 6 termination in sanjana m wig vs hindustan petroleum corporation limited a two judge bench of this court speaking through justice s b sinha has observed 12 the principal question which arises for consideration is as to whether a discretionary jurisdiction would be refused to be exercised solely on the ground of existence of an alternative remedy which is more efficacious 13 however access to justice by way of public law remedy would not be denied when a lis involves public 6 2005 8 scc 242 55 part e law character and when the forum chosen by the parties would not be in a position to grant appropriate relief 18 it may be true that in a given case when an action of the party is dehors the terms and conditions contained in an agreement as also beyond the scope and ambit of the domestic forum created therefor the writ petition may be held to be maintainable but indisputably therefor such a case has to be made out it may also be true as has been held by this court in amritsar gas service 1991 1 scc 533 and e venkatakrishna 2000 7 scc 764 that the arbitrator may not have the requisite jurisdiction to direct restoration of distributorship having regard to the provisions contained in section 14 of the specific relief act 1963 but while entertaining a writ petition even in such a case the court may not lose sight of the fact that if a serious disputed question of fact is involved arising out of a contract qua contract ordinarily a writ petition would not be entertained a writ petition however will be entertained when it involves a public law character or involves a question arising out of public law functions on the part of the respondent emphasis supplied in the present case the high court was evidently concerned over a fundamental issue of public interest which was the hardship that would be caused to commuters who use the rapid metro as a vehicle for mass transport in gurgaon as such the high court s exercise of its writ jurisdiction under article 226 in the present case was justified since non interference which would have inevitably led to the disruption of rapid metro lines for gurgaon would have had disastrous consequences for the general public however as a measure of abundant caution we clarify that ordinarily the high court in its jurisdiction under article 226 would decline to entertain a 56 part e 7 dispute which is arbitrable moreover remedies are available under the arbitration and conciliation act 1996 for seeking interim directions either under section 9 before the court vested with jurisdiction or under section 17 before the arbitral tribunal itself 50 it is also important to note that the termination of the concession agreements had consequences in terms of the provisions contained in the agreement requiring a deposit of 80 per cent of the debt due under article 24 4 the contesting parties agreed to an independent third party determination of this amount by a neutral entity namely the cag the primary function of cag was to appoint a team of auditors for conducting a financial audit of the debt due and in that process of also examine the scope of the audit the orders dated 4 october 2019 and 15 october 2019 issued by the high court also envisaged that cag would examine the scope of the audit while the earlier order of 4 october 2019 required cag to examine the scope of the audit of the debt due suggested by hsvp the subsequent order dated 15 october 2019 required the examination by cag on the scope of the audit after bearing in mind the suggestions by both the parties in terms of the concession agreement the expression in terms of the concession agreement indicates that the basis of the audit was to be what was envisaged in the concession agreements which specifically defines the expression debt due pertinently the original order of 20 september 2019 specifies a strict time schedule within which on a determination being made by the auditor 80 per cent of the debt due would be deposited by hsvp 7 bisra lime stone co ltd vs orissa seb 1976 2 scc 167 57 part e in the escrow account this was however subject to the safeguard that it would be subject to any order that may be passed by nclat or by a competent statutory authority however it was further clarified that the rest of the disputes between the parties to the lis arising out of the audit report were to be agitated in arbitration proceedings 51 this provision which is embodied in clause v of the operative directions of the high court s consent order dated 20 september 2019 is capable of a reasonable interpretation that once a determination was made in the audit report 80 per cent would be deposited in the escrow account by hsvp and if any dispute arising out of the audit report remained that would be resolved in arbitration as a matter of fact the subsequent order of 4 october 2019 replaced clause v by envisaging that the rest of the disputes between the parties arising out of i the cag report ii the validity of the termination notices issued by both the parties and iii any past or future inter se claims liabilities shall be agitated and decided in arbitration proceedings 52 hsvp and hmrtc on the one hand and rmgl rmgsl on the other were in discussion at arm s length when they invited the high court to pass its order dated 20 september 2019 and agreed to the modifications which have been made by the orders dated 4 october 2019 and 15 october 2019 a two judge bench of this 58 part e court speaking through justice ruma pal in manish mohan sharma vs ram 8 bahadur thakur limited has observed 28 a consent decree has been held to be a contract with the imprimatur of the court superadded it is something more than a mere contract and has the elements of both a command and a contract see wentworth v bullen 141 elr 769 c f angadi v y s hirannayya 1972 2 scr 515 as was said by the privy council as early as 1929 the only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is set aside by another order of the court the second stands until and unless it is discharged on an appeal see charles hubert kinch v edward keith walcott and ors in the face of the clear stipulations contained in the order of the high court it would be impermissible to interdict the consequences emanating from the working out of the directions contained in the above orders of the high court upon the submission of the cag report 53 cag in the course of its affidavit filed before this court and high court by the deputy accountant general shri ksn prasad ias and as deputy general administration has clarified that it was decided after examining the scope of the financial audit of the debt due suggested by both the parties that cag would examine only those issues which are related and relevant to examining the debt due under the concession agreements cag followed a process which is fair by i making a statement on the scope of the audit before the high court in advance 8 2006 4 scc 416 59 part e ii examining the scope of the audit as suggested by the parties before making its determination iii appointing a firm of chartered accountants for conducting an audit as was envisaged in the order of the high court iv furnishing the contesting parities with a copy of the draft report v allowing the parties to submit their response to the draft report vi granting an extension of time to the state of haryana to submit its comments and vii placing the state on notice that it would have to file its objections finally by a prescribed deadline failing which the report would be finalized 54 hmrtc and hsvp are themselves to blame if they did not submit their responses cag has specifically rebutted the objections to the audit report submitted by hmrtc on the ground that as a constitutional authority cag decided upon the scope of the audit of the debt in terms of the concession agreements which it submitted to the high court moreover it has clarified that this was a financial audit of the debt due and the auditors reported their findings in terms of the concession agreements the fir lodged by the economic offences wing the income tax department notice investigation by the sfio and forensic audit did not form a part of the financial audit conducted by the cag cag has submitted that a financial audit of the debt due is complete and conclusive under the scope of audit as decided by cag and submitted to the high court 60 part e 55 it is pertinent to remember that the projects in question have been funded by a consortium led by banks among which are canara bank and andhra bank the terms of the concession agreements expressly recognized that the projects were being publicly funded through financial institutions the audit report emphasized that the proportion between debt and equity was pegged at 70 30 the terms of the concession agreement dated 9 december 2009 clearly envisaged the purpose of the escrow account in article 18 huda the predecessor of hsvp entered into a concession agreement dated 9 december 2009 which in article 17 expressly recognizes the linkage between the financing package and the concession agreement in fact article 17 2 emphasizes that the rights of the concessionaire would stand waived if financial closure was not to occur within six months within the cure period of six months further article 18 1 envisages that all funds constituting the financing package for meeting the concessionaire s capital cost shall be credited to the escrow account during the period of operations and all fare and non fare revenues collected by the concessionaire shall be exclusively deposited in it under article 18 2 the concessionaire was required to give to the escrow bank irrevocable instructions while opening the escrow account that the deposits into the escrow account would be appropriated in the manner indicated in clauses i to ii of article 18 2 1 this includes provision for debt service payments these provisions in the concession agreement have a vital bearing on the subject matter of the present dispute canara bank in its affidavit filed before the high court has stated that on behalf of consortium of lenders acting as facility agent it financed rmgsl in the aggregate of rs 1500 crores in terms of a common loan agreement the escrow 61 part e account agreement has been entered into in pursuance of the concession agreement and to effectuate the funding of the project no 2 as on 31 july 2019 the lenders of rmgsl have an outstanding of rs 1651 crores approx hence the projects which have been executed by rmgl and rmgsl involved an outlay of funds from andhra bank and canara bank who have a vital stake in the financials of the projects 56 as such hmrtc and hsvp cannot avoid at this stage complying with the directions which were issued by the high court in its orders dated 20 september 2019 as modified on 4 and 15 october 2019 on the plea that an fir has been lodged on 16 december 2018 against il fs group in which there are allegations against rmgl and rmgsl of producing fake invoices and inflating the capital cost of the rapid metro projects the circumstances which have been adverted to in the affidavit filed by hmrtc in the high court were known to it and to hsvp when they both agreed to an order which emanated with the consent of the parties on 20 september 2019 both hmrtc and hsvp were conscious of their obligation to deposit 80 per cent of the debt due as a consequence of the termination by the provisions contained in the concession agreements they wished to lend an assurance to the determination of the debt due by seeking the involvement of the cag they made a solemn commitment before the high court that within 30 days of the determination 80 per cent of the debt due would be deposited in an escrow account this amount it must be emphasized is not being handed over either to rmgl or rmgsl which have been classified as red entities of the il fs group 62 part e the placement of the quantum representing 80 per cent of the debt due in escrow account is to abide by such directions as may be issued by nclat or any other competent statutory authority besides this provision remedies are available either before the competent court under section 9 or before the arbitral tribunal under section 17 of the arbitration and conciliation act 1996 hence there being an agreement between the parties to permit hsvp and hmrtc to obstruct or delay compliance with their obligations would be manifestly impermissible for three reasons i firstly the obligation to deposit 80 per cent debt due as a consequence of the termination emanates from article 24 4 of the concession agreement dated 9 december 2009 ii secondly the obligation to deposit 80 per cent of the debt due as determined in the report of the auditor has been assumed voluntarily before the high court by hsvp hmrtc from which as public bodies they cannot be permitted to resile and iii thirdly there is a vital public interest element in ensuring that the monies which are committed by banks and financial institutions towards financing infrastructure projects are secured to them in terms of the concession agreements 57 the underlying wrongdoing which was allegedly conducted by the promoters in the erstwhile management of il fs undoubtedly needs to be investigated the process of pursuing the forensic audit the investigation by the sfio and by the law 63 part e enforcement machinery must follow to its logical conclusion the nclt is supervising the resolution process with a government appointed board now being in charge of the management of il fs equally financing arrangements entered into by financial institutions towards fulfilling infrastructure projects based on the sanctity of the commercial contracts are to be duly observed this facet has to be emphasized since it embodies a vital element of public interest as well commentators have noted that d eterioration in loan recovery not only leads to higher provisions and diminished profitability but also constrains banks lending 9 capacity thus affecting the economy adversely unless the dues which are assured to financial institutions as part of the arrangements which are envisaged in concession agreements are duly enforced the structure of financing for infrastructure projects may well be in jeopardy such a consequence must be avoided by declining to accede to a request such as that by hmrtc and hsvp which is to allow it to resile from its obligations these obligations arise not only in terms of the concession agreements but have been solemnly assumed before the high court hence on both counts hmrtc and hsvp cannot be permitted to resile 58 the intervention of this court under article 136 of the constitution was sought having regard to the manner in which the proceedings before the high court were being derailed on 12 october 2020 after hmrtc filed its affidavit the high court 9 rekha mishra rajmal and radheshyam verma determinants of recovery of stressed assets in india an empirical study economics and political weekly vol 51 issue no 43 22 oct 2016 64 part e noted the appellant s submission that the matter does not brook any delay and yet adjourned the matter to 16 october 2020 thereafter when the proceedings came up on 16 december 2020 and the response filed by cag was taken on the record the hearing of the writ petitions was again deferred to 8 april 2021 this course of events indicates that the whole object and purpose behind setting down the timelines in the order dated 20 september 2019 stood the risk of being defeated this court has been constrained to intervene in the process in order to ensure that the sanctity of the understanding that was arrived at before the high court on 20 september 2019 is duly maintained as we have already observed earlier there is a vital public interest element in ensuring that monies which are liable to be deposited in the escrow account with a nationalised bank are duly deposited hmrtc and hsvp it must be emphasized are not left without remedy the deposit into the escrow account has to be maintained in that form and will abide by such orders that may be passed by nclat or by a competent statutory authority besides this the concession agreements provides a clear cut remedy for seeking reliefs under the arbitration agreement 59 as noted earlier the invocation of the writ jurisdiction of the high court under article 226 of the constitution by hmrtc and hsvp was to challenge the termination notices dated 17 june 2019 and to obviate the consequence of the cessation of the rapid metro operations which would have ensued on the expiry of the notice period the arbitration clause of the concession agreements provides sufficient recourse to remedies which can be availed of that apart the order of the 65 part f high court dated 4 october 2019 has also clarified that the rest of the dispute that remains after the deposit of 80 per cent of the debt due either arising out of the cag report the validity of the termination notices issued by both the parties and any past or future inter se claims and liabilities shall be agitated and decided in the arbitration proceedings in view of the order which we propose to pass the dispute between the high court in the writ jurisdiction under article 226 of the constitution shall stand worked out by granting liberty to the parties to avail of their rights and remedies in accordance with law f conclusion 60 we accordingly dispose of the appeals in terms of the following directions i hsvp shall within a period of three months from the date of the present judgment deposit into the escrow account 80 per cent of the debt due as determined in the reports of the auditors dated 23 june 2020 in the case of rmgl and rmgsl respectively ii the deposit into the escrow account shall continue to be maintained in escrow subject to any order that may be passed by nclat or any competent statutory authority and shall not be appropriated by the escrow bank without specific permission iii rmgl and rmgsl on the one hand and hsvp on the other are at liberty to pursue their rights and remedies in pursuance of the arbitration clause contained in the concession agreements on all 66 part f matters falling within the ambit of the arbitration agreement including the validity of the notices of termination any past or future inter se claims and liabilities as envisaged in the order of the high court dated 20 september 2019 as modified on 4 october 2019 and 15 october 2019 iv in terms of clause v of the order of the high court dated 20 september 2019 in the event of any dispute arising about the correctness of the cag report in regard to the determination of the debt due any of the parties would be at liberty to raise a dispute in the course of arbitral proceedings v upon compliance with the directions contained in i above rmgl and rmgsl shall execute and handover to hsvp all documents which are required for effectuating the transfer of operations maintenance and assets to hsvp or their nominees with a view to fulfill the obligation of the concessionaires in article 25 of the concession agreement dated 9 december 2009 and clause vi contained in the order of the high court dated 20 september 2019 as modified on 4 october 2019 and 15 october 2019 and vi the writ petitions filed before the high court by the respondents shall stand disposed of 67 part f 61 the present judgment shall not affect any ongoing investigation or criminal proceedings in respect of the il fs group of companies the appeals shall be disposed of in the above terms there shall be no order as to costs 62 pending application s if any stand disposed of j dr dhananjaya y chandrachud j m r shah j sanjiv khanna new delhi march 26 2021 68 reportable in the supreme court of india civil appellate jurisdiction civil appeals nos 925 926 of 2021 arising out of special leave petition c nos 1832 1833 of 2021 rapid metrorail gurgaon limited etc appellant versus haryana mass rapid transport corporation respondents limited ors 1 j u d g m e n t dr justice dhananjaya y chandrachud j this judgment has been divided into the following sections to facilitate analysis a factual background b submissions of counsel c analysis of the concession agreements d terms of the consent order dated 20 september 2019 passed by the high court e obligations of hmrtc and hsvp to pay the debt due f conclusion 2 part a a factual background 1 in 2008 haryana shehri vikas pradhikaran hsvp the second respondent issued a request for qualification and request for proposal rfq rfp for developing a metro rail link from delhi metro sikanderpur station on mg road to nh 8 project no1 a consortium agreement was entered into on 1 december 2008 between il fs rail limited irl il fs transportation networks limited itnl and dlf metro limited in which irl was identified as the lead member of the consortium hsvp accepted the bid submitted by the consortium and issued a letter of award of 16 july 2009 subject to the condition that a concession agreement would be executed within 60 days pursuant to the letter of award the consortium incorporated the first appellant rapid metrorail gurgaon limited rmgl under the companies act 1956 the act of 1956 and requested hsvp to accept rmgl as the entity which would undertake fulfill and exercise the rights of the consortium under the letter of award 2 on 9 december 2009 hsvp entered into a concession agreement with rmgl for the execution of project no 1 on a design build finance operate and transfer basis hsvp granted a concession to rmgl for a period of 99 years from the effective date including the exclusive right license and authority during the subsistence of the concession agreement to implement and operate project no 1 3 part a 3 in 2012 hsvp issued another rfq rfp for developing a metro rail link from delhi metro sikanderpur station on mg road to sector 56 gurugram project no 2 4 on 25 april 2012 irl and itnl entered into a consortium arrangement in the form of a memorandum of understanding under which irl was identified as the lead member of the consortium the bid submitted by the consortium was accepted by hsvp which issued a letter of award on 1 october 2012 pursuant to the letter of award the consortium promoted and incorporated the second appellant rapid metrorail gurgaon south limited rmgsl which would fulfill the obligations and exercise the rights of the consortium under the letter of award thereafter a concession agreement was entered into between hsvp and rmgsl for the execution of project no 2 on 3 january 2013 the term of the concession was 98 years commencing from the effective date rmgsl had the exclusive right license and authority during the subsistence of the concession agreement to implement and operate project no 2 5 rmgl completed project no 1 on 14 november 2013 rmgsl completed project no 2 on 31 march 2017 in the meantime on 11 january 2014 the town and country planning department of the government of haryana directed that all metro projects and projects for haryana mass rapid transport in the state would be handled by the first respondent haryana mass road transport corporation limited hmrtc 4 part a 6 on 17 july 2018 rmgl and rmgsl issued notices to hsvp to cure material breaches they alleged had been committed under the concession agreement responding to the cure notice dated 17 july 2018 hsvp addressed a communication dated 11 october 2018 to both rmgl and rmgsl 1 7 on 1 october 2018 a petition was instituted by the union of india under section 241 2 read with section 242 of the companies act 2013 the act of 2013 before the mumbai bench of the national company law tribunal nclt against infrastructure leasing and financial services limited il fs and its board of directors board on the ground that the affairs of the company and its subsidiaries were being conducted in a manner prejudicial to public interest both rmgl and rmgsl form part of the il fs group of companies acting on the petition the nclt by its order dated 1 october 2018 superseded the existing board of il fs with a newly constituted board which was appointed on the recommendation of the union government the new board took charge of the affairs of the il fs and was authorised to conduct its business and formulate a road map for recovery 8 the national company law appellate tribunal nclat by an order dated 4 february 2019 appointed mr justice d k jain a former judge of this court to supervise the resolution process for the il fs group of companies the appellants rmgl and rmgsl were categorized as a red entity of the il fs group of 1 company petition no 3638 of 2018 5 part a 2 companies in an affidavit dated 11 february 2019 filed by the union of india before the nclat 9 on 7 june 2019 rmgl issued a notice of termination to hsvp seeking to bring an end to the concession agreement dated 9 december 2009 in terms of article 24 5 1 upon the expiry of 90 days from the date of delivery of this termination notice a similar termination notice was issued by rmgsl to hsvp in terms of article 32 5 1 of the concession agreement dated 3 january 2013 further on 7 june 2019 the appellants responded to the letter of hsvp complaining of material breaches alleged to have been committed by the appellants under their respective concession agreements 10 on 26 june 2019 rmgl wrote to hsvp intimating that the divestment requirements contained in article 25 4 and article 25 2 of the concession agreement dated 9 december 2009 had already been completed by it however hsvp had failed to fulfill its obligations under article 25 4 to verify rgml s compliance with such divestment requirements a similar letter was addressed by rmgsl in the context of the concession agreement dated 3 january 2013 on 1 august 2019 rmgl informed hsvp that it had completed the formalities for handover of project no 1 and that the concession agreement dated 9 december 2009 would stand terminated on the expiry of 90 days from the termination notice rmgl asserted that it would stop the operation and maintenance of project no 1 2 filed in company appeal at no 346 of 2018 6 part a after the termination a similar letter was addressed by rmgsl to hsvp in the context of the concession agreement dated 3 january 2013 and project no 2 11 on 8 august 2019 nclat issued directions for the entities forming a part of il fs group of companies which had been categorized in the red category inasmuch as that they had to seek the approval of justice d k jain before alienating encumbering transferring or creating third party rights on assets rmgl presented a memorandum on 19 august 2019 to justice d k jain to seek his approval for handover of the project no 1 to hsvp a similar approval was sought by rmgsl in the context of project no 2 12 on 26 august 2019 the respondents issued a notice of termination to rmgl under articles 24 1 and 24 2 of the concession agreement dated 9 december 2009 terminating the agreement they directed rmgl to handover project no 1 to hmrtc which in turn would hand it over to delhi metro rail corporation dmrc a similar notice of termination was issued to rmgsl coupled with an analogous direction for handing over project no 2 13 on 6 september 2019 justice d k jain permitted rmgl to handover possession and control of project no 1 to hsvp pursuant to the termination of the concession agreement dated 9 december 2009 on or before 9 september 2019 by a separate order on the same date rmgsl was permitted to handover possession and control of project no 2 by the same date 7 part a 14 further also on 6 september 2019 the same day as the order of justice d k 3 jain permitting handover the respondents instituted a writ petition under article 32 of the constitution before the high court for the state of punjab and haryana challenging notice of termination dated 7 june 2019 issued by rmgl inter alia on the ground that the period of 90 days shall start from the date of permission which had not been yet granted by justice d k jain an interim direction was sought for 4 the continuance of the operation of project no 1 by rmgl another writ petition was instituted to challenge the notice of termination by rmgsl on similar grounds and similar interim directions were sought in respect of project no 2 the observations of justice d k jain contained in his order dated 6 september 2019 in respect of the concession agreement dated 9 december 2009 were produced before the high court which were as follows 20 nevertheless clause 24 6 of article 24 stipulates that upon termination of the concession contract for any reason whatsoever huda shall take possession and control of metro link forthwith including the material construction plan implements equipment etc on or about the site therefore except for the stipulation of a prior 90 days notice in writing to huda by the concessionaire for termination of the concession contract where after such termination takes effect upon termination of the concession contract by either of the parties huda is obliged to take possession of the metro link forthwith i am inclined to agree with the ld counsel appearing for rmgl that requirement of the said prior notice is to enable huda to prepare itself to take over the possession and control of the metro link in that view of the matter the notice of termination of the concession contract having been served by rmgl on hsvp earlier known as huda in writing on june 7 2019 the said 3 wp c no 24949 of 2019 4 wp c no 24951 of 2019 8 part a termination notice takes effect on the expiry of the 90 days therefrom i e september 8 2019 and rmgl is required to handover the possession and control of the subject metro link to hsvp on or before september 9 2019 and hsvp is obliged to take possession and control of the metro link forthwith there is no explanation as why hsvp did not take any steps to ensure smooth handing and taking over of the project by rmgl to hsvp all this while in so far as the question of validity of the termination notice issued by rmgl to hsvp is concerned the issue is to be decided at an appropriate forum and not by the undersigned in terms of the afore extracted direction by the hon ble nclat the observations of justice d k jain in respect of the concession agreement dated 3 january 2013 were as follows 19 it is evident that both the parties are ad idem that both the parties having issued notices for terminating the agreement the metro link has to be taken over by hsvp hmrtc but the dispute is only with regard to the time when the handing over and taking over after the same should take place no explanation whatsoever is forthcoming as to why on the receipt of termination notice dated june 7 2019 hsvp hmrtc did not take any steps to ensure smooth handing over of the project by rmgsl to them all this while in so far as the question of validity of the termination notice issued rmgsl to hsvp is concerned the issue is to be decided at an appropriate forum and not by the undersigned in terms of the afore extracted direction by the hon ble nclat 20 accordingly rmgsl is permitted to handover the possession and control of metro link from delhi metro sikanderpur station on mg road to sector 56 gurugram to asvp pursuant to the termination of the concession agreement dated january 3 2013 it goes without saying that this permission is without prejudice to the rights and contentions of the contesting parties to take recourse to appropriate legal proceedings to assail the validity and consequences of termination of the concession agreement by both of them it is however clarified that hsvp shall still be free to engage the services of rmgsl albeit at the mutually discussed negotiated terms and charges to run the 9 part a subject metro link till such time appropriate alternative arrangements are made by hspv to run the same 15 on 6 september 2019 the high court while issuing notice adjourned the proceedings to 9 september 2019 and directed that until then the operation of the rapid metro rail by the appellants shall continue on both the lines till midnight on 9 september 2019 on 9 september 2019 the high court deferred the hearing to 17 september 2019 with a consequent extension to its interim order as well the high court observed order dated 09 09 2019 we propose to pass this order in both the cases i e cwp nos 24949 and 24951 of 2019 although both the contracts dated 03 01 2009 and 03 01 2013 executed for both the lines of the rapid metro rail at gurgaon have been terminated by both the parties i e hsvp previously known as huda on 26 08 2019 forthwith and the rmgsl by giving 90 days notice with effect from 07 06 2019 which comes to an end on 09 09 2019 but the operations are still continuing under the orders of this court dated 06 09 2019 till the midnight of 09 09 2019 after lengthy arguments addressed by counsel for the parties the court has found that the dispute between the parties may be resolved by negotiation for which they both would require some time and therefore the hearing of this case is deferred to 17 09 2019 and the order of stay granted on 06 09 2019 is also extended till 17 09 2019 till midnight during the course of hearing learned senior counsel appearing on behalf of the respondent has submitted that with the termination of the contract with effect from 09 09 2019 the respondent would not act as a concessionaire rather would act as an agent 10 part a on the other hand learned senior counsel for the petitioners has submitted that the respondent can act as a licensee be that as it may the question as to whether the respondent would act for the purpose of operation and management till 17 09 2019 till midnight as a licensee or an agent shall be decided on the next date of hearing learned senior counsel for the respondent has also referred to the terms and conditions for the purpose of discussion in the meeting during this period which are also reproduced as under 1 time bound handover of the project to hsvp 2 commitment to take handover the project by hsvp 3 commitment to pay at least 80 of debt due as termination payment to rmgl rmgsl by hsvp 4 handover to start immediately 5 rmgl rmgsl to act as agent of hsvp for further work post 09 09 2019 6 cost and benefit to be on hsvp s account 7 indemnification of rmgl rmgsl from any third party claims and from hsvp s actions 8 rights and benefits of parties get frozen on the date termination of concession agreement becomes effective be 09 09 2019 and 9 issuance of vesting certificate by hsvp learned senior counsel appearing on behalf of the petitioners has submitted that all these issues would be discussed in the joint meeting of the parties till the next date of hearing i e 17 09 2019 the respondent shall operate and manage the rapid metro rail at gurgaon on both the lines but subject to reimbursement of the insurance and operation and maintenance cost by the petitioners of this period a copy of this order be given to both the parties under signatures of bench secretary of this court to be taken up in the urgent list a photocopy of this order be placed on the file of other connected case 11 part a on 18 september 2019 the following order was passed order dated 18 09 2019 learned senior counsel appearing on behalf of the rapid metrorail gurgaon ltd rmgl and the rapid metrorail gurgaon south lid rmgsl has made the following proposals i rmgl rmgsl will continue to operate their metro link for a period of 30 days i e until october 16 2019 during which a the debt due as per financing documents in terms of the concession agreement may be determined by an auditor appointed by the hon ble court and b the process for transfer of the metro links may be undertaken under the supervision of two hon ble retired high court judges one being nominated by rmgl rmgsl and one being nominated by hsvp ii during this extended period since 9 september 2019 rmgl rmgsl will act as agents of hsvp rmgl and rmgsl will be responsible for all liabilities arising on account of their gross negligence and fraud during this time iii the conditions set forth in i and ii above are subject to an undertaking from hsvp that once the debt due is determined by the auditor appointed by the hon ble court at least 80 of the debt due so determined shall be deposited in the escrow account inter alia in terms of the concession agreement escrow agreement and substitution agreement iv the above proposal is made to safeguard immediate interest of the public sector lenders of the project and is without prejudice to the rights and remedies of rmgl rmgsl under contract or applicable laws including inter alia the right to claim any differential amounts that may be due and payable to the lenders or rmgl rmgsl as termination payments or any other payments he has also submitted that since the petitioners may take some time to consider the aforesaid proposals rmgl rmgsl shall continue its operation and management till 20 09 2019 midnight 12 part a adjourned to 20 09 2019 to be shown in the urgent list a photocopy of this order be placed in the file of the connected case 16 in the order of the high court dated 18 september 2019 there was a specific reference to the proposals which were made on behalf of the rmgl and rmgsl the proposals essentially were that firstly rmgl and rmgsl would continue to operate the rapid metro link for 30 days during which the debt due as per the financing documents in terms of their respective concession agreements would be determined by an auditor and secondly an undertaking would have to be furnished by hsvp that on determination of the debt due by the auditor at least 80 per cent of the amount so determined should be deposited in the escrow account in terms of the concession agreements the respondents hmrtc and hsvp submitted their response to the proposal which was made by the appellants which was adverted to in the earlier order the response was in the following terms i with respect to the request of the rmgl and rmgsl to continue to operate the said metrolines fora period of 30 days it is stated that hmrtc and hsvp have already entered into a formal agreement with the delhi metro rail corporation ltd dmrc on 16 september 2019 for operations and maintenance o m of the said metro lines and it is categorically stated that hmrtc and hsvp has signed the said agreement on account of the fact that previously rmgl rmgsl were not acceding to the request of hmrtc hsvp to run the said metrolines for sufficient period during which effective resolution of the entire matter could be achieved now after having signed the said agreement with dmrc hmrtc hsvp is also of the view that the entire process of handover of o m for the said metro lines to 13 part a dmrc be done under the supervision of hon ble retd high court judge as may be appointed by the hon ble court within reasonable time ii secondly the aspect of the ascertainment of debt due is linked with the definition of the words debt due in the concession agreement linked with the ascertainment of the total project cost however the hmrtc and hsvp do hereby agree with the proposal of the rmgl and rmgsl that an auditor may be appointed to ascertain the actual figures in that respect in this matter the hmrtc and hsvp proposes that comptroller and auditor general of india cag may be given the assignment of financial audits under the order of the hon ble court to ascertain financial aspects including determination of over invoicing into the project hmrtc hsvp are agreeable for the appointment of cag subject to full cooperation by rmgl and rmgsl and all documents and other information pertaining to the debt due may be provided to cag or the auditor so appointed with a copy to hmrtc and hsvp iii thirdly during the transition period the period during which o m of the said metro lines shall be transferred from rmgl and rmgsl to dmrc rmgl rmgsl have proposed to act as an agent of the hmrtc and hsvp during the said period in this respect it is stated that it will lead to further complications hmrtc and hsvp have transferred the amount of insurances and the entire control will remain with the rmgl and rmgsl during this period rmgl and rmgsl shall continue their o m in terms of concession agreements and the hmrtc and hsvp have no objection that rmgl rmgsl may receive all the revenues arising from o m and incur all expenses therefrom itself and pay the same as is being done currently in other words the rmgl and rmgsl remain responsible and liable for all their acts and deeds with are generally associated with the running of the said metro lines not limited to only the gross negligence and fraud during this time iv fourthly the aspect of hmrtc and hsvp undertaking to deposit the 80 of the debit due in escrow account as would be ascertained by the auditors depends solely on the outcome of the report as would be submitted by the learned auditor as shall be appointed by the hon ble court and the hmrtc and hsvp do hereby commit and confirm to adhere to the directions as would be passed by the hon ble high 14 part a court or nclat or any other court or any other order under any other legal proceeding s passed by any other competent authority in that respect in terms of the concession contract subject to the all other rights and entitlements in favour of both the parties arising out of the same v with respect to the submission that rmgl rmgsl is reserving their right to claim differential payment it is apprised that by having stated that rmgl rmgsl are trying to keep options open to challenge whereby rmgl rmgsl may rekindle this entire matter again after having settled the matter in the light of aforesaid statement i e after having settled the amount which becomes due i e 80 of the debt due in terms of the definition contained in the concession agreement as linked with the total project cost which shall be ascertained by an auditor as shall be appointed by the hon ble court as such the same cannot be acceded to since this would lead to multiplicity of litigation and could be a serious dampener on this entire matter this matter is being settled under the directions of the hon ble court and as such the same should be acceptable to you gracefully vi that the hmrtc and hsvp hereto reserves its right to make any further submissions in the light of any further arguments or facts that may be brought to light in this matter during the audit process and course of proceedings 17 the proposal submitted by rmgl and rmgsl which had been responded to by hsvp and hmrtc was then deliberated in the high court accordingly the following directions were issued by the division bench on 20 september 2019 recording that a consensus had been arrived at in the presence of senior officers of the contesting parties namely the managing director of hmrtc chief administrator of hsvp the managing director of rmgsl and director of rmgl thereupon the directions which were issued by the division bench of the high court on 20 september 2019 were in the following terms 15 part a i rmgl and rmgsl have decided to continue the operation and maintenance for short o m of both the metro lines for the period of 30 days w e f 16 09 2019 in the meantime process of transfer of control and management of operation and maintenance of both the metro links shall start w e f 23 09 2019 the operation and maintenance by rmgl and rmgsl shall be in terms of the order dated 09 09 2019 passed by this court it is needless to mention that in case of any clarification modification the parties shall be at liberty to approach this court by moving an appropriate application s in these petitions both the parties have requested to appoint two retired hon ble judges of the high court on payment of suitable remuneration to supervise the aforesaid transfer and in this regard petitioners have suggested the name of hon ble mr justice kailash gambhir retd and the respondent s has suggested the name of hon ble mr justice v k gupta retd keeping in view the magnitude of work involved we direct that 10 00 lakh towards remuneration shall be paid to hon ble mr justice kailash gambhir retd by the hsvp and remuneration to the tune of 710 00 lakhs shall be paid to hon ble mr justice v k gupta retd by the rmgl rmgsl ii as far as debt due as defined under the concession contract is concerned direction is issued to the comptroller and auditor general of india for short cag to appoint a team of auditors for the financial audit of the debt due and also for examining the scope of the audit of debt due audited by the hsvp with the assistance of the auditors appointed by the parties to the lis it is needless to say that the cag shall complete the aforesaid audit within a period of 30 days iii it is directed that the arrangements made by this court vide order dated 09 09 2019 shall continue till the process of handing over the operations is complete iv it is further directed that amount of 80 of the debt due determined in terms of the audit report of the cag shall be 16 part a deposited by the hsvp in the escrow account which shall be subject to any order passed by the nclat or any other competent statutory authority within a period of 30 days after the receipt of the audit report v it is further directed that rest of the disputes between the parties to the lis arising out of the audit report shall be agitated and decided in the arbitration proceedings a mode provided in the concession contracts vi it is also directed that whatever documents are required for the purpose of final transfer of operation and management and the assets the same be given by the rmgl and rmgsl to hsvp after the payment of debt due this order dated 20 september 2019 was subsequently modified by the high court on 4 october 2019 in the following terms notice in the applications was issued to which no reply has been filed however suggestions made by the applicant s respondent s are accepted by the non applicant s petitioner s and therefore three clauses i e clause no ii v and vi of the order dated 20 09 2019 are hereby clarified modified to the following extent in clause ii at pages no 12 and 13 of the order the words i e also for examining the scope of the audit of debt due audited by the hsvp with the assistance of the auditors appointed by the parties to the lis be replaced with the words also for examining the scope of the audit of the debt due suggested by the hsvp with the assistance of the auditors appointed by the parties to the lis the cag will also examine the scope of the audit of debt due suggested by the hsvp in terms of the concession agreement as regards to clause v it is being replaced with the following v it is further directed that rest of the dispute between the parties to the lis either arising out of the cag report the validity of the termination notices issued by both the parties and any past or future inter se claims liabilities shall be agitated decided in the arbitration proceedings a mode provided in the concession agreement needless to say that arbitration proceedings shall be subject to any permission that may be required from nclat or any other competent court of law 17 part a insofar as clause vi is concerned learned senior counsel appearing on behalf of the applicant s respondent s after taking instructions from mr rajiv banga managing director rmgsl and director rmgl has submitted that the same be read as under vi it is directed that whatever documents are required for the purpose of transfer of operation and maintenance is concerned the same will be handed over by the rmgl and rmgsl to the petitioners or their agent licensee dmrc in terms of direction no i and rest of the documents which are for final transfer of the assets the same be given by the rmgl and rmgsl to hsvp after payment of the debt due however in the meanwhile the proposed documentation in terms of concession agreement may also be communicated by the rmgl and rmgsl to the petitioners with the aforesaid clarifications modifications present applications are hereby disposed of further on the joint request of counsel for the parties cag is directed to complete the audit as ordered by this court by counting the period of 30 days from the date of receipt of certified copy of this order 18 on 15 october 2019 the high court allowed an extension of seven days for implementing the directions issued in its orders dated 20 september 2019 and 4 october 2019 the high court also corrected its earlier order with the consent of the contesting parties in the following terms accordingly the applications are allowed however mr puneet bali has pointed out that there is an error in the order dated 04 10 2019 he has further submitted that instead of reading the order the cag will also examine the scope of the audit of debt due suggested by the hsvp in terms of the concession agreement be read as the cag will also examine the scope of the audit of debt due suggested by both the parties in terms of the concession agreement 19 in pursuance of the order of the high court the comptroller and auditor general of india cag presented a statement dated 19 november 2019 in regard to 18 part a i the scope of the audit and ii deliverables and timelines the statement has a bearing on the controversy and is hence extracted in entirety 1 verify that the debt due has been arrived at with reference to the terms conditions of respective concession contracts and all financing agreements documents which may have bearing on the computation of debt due 2 verify that all funds constituting the financial package debt and equity for meeting the concessionaire s capital cost has been credited received in the escrow account as per the quantum ratio priority procedure prescribed in common loan agreement and assessing the impact on the amount of debt due 3 verify that the funds of financial package deposited in the escrow account were used for the project assets as defined in the concession contract and assess the impact on the amount of debt due 4 verify receipt and check that all non fare revenues were duly accounted for referring to the agreements governing such revenues similarly verify receipt and deposit of all fare revenues in the escrow account including reconciliation with dmrc other relevant document assessing the impact on the amount of debt due 5 verify that all amounts standing to the credit of escrow account has been appropriated and dealt with in the order prescribed in the concession contract and escrow agreement assessing the impact on the amount of debt due 6 verify that all other receipts and payments have been routed through escrow accounts review all other bank accounts maintained operated by the concessionaire during concession period with a view to assess the impact of the operation of such account on the amount of debt due 7 verify that the information contained in annual reports i e audited financial statements directors reports and statutory audit reports of the concessionaire to the extent this information has a bearing on the amount of debt due has been arrived at by following the applicable accounting standards and guidelines in particular ind_as 11 on construction contracts ind_as 23 on 19 part a borrowing costs ind_as 38 on intangible assets ind_as 115 on revenue from customer contracts 8 audit would cover verification of other aspects as may be considered necessary ring the course of audit to verify the amount of debt due 9 above audit would be conducted for the concession period since inception by following the applicable standards of auditing issued by cag cai inter alia 200 299 on general principals and responsibilities 300 499 on risk assessment and response to assessed risks 500 599 on audit evidence with emphasis on sa 530 on audit sampling and 600 699 on using work of others 10 nature timing and extent of audit procedure will be impacted by the audit evidence obtained a risk assessment or problem analysis may be conducted and the scope may be revised as necessary in response to the audit findings unimpeded and quick access to relevant records documents may be ensured by the auditee any delay in getting records would be recorded so as to maintain audit trail deliverables and timelines 1 within two weeks from date of award the auditor shall submit inception report indicating results of risk assessment audit methodology for conducting audit and constraints if any 2 draft audit report to be submitted by auditor within three months from date of award of audit 3 monthly appraisal meetings to be held to review the audit progress and modify the scope of audit if necessary 20 cag then filed a civil miscellaneous application together with the compliance affidavit before the high court on 25 june 2020 stating that it had appointed a firm of chartered accountants sarc associates to undertake a financial audit of the debt due between hmrtc hsvp and the concessionaires rmgl rmgsl it was noted that in terms of the audit process followed by cag the draft audit report was furnished to both sets of contesting parties by emails dated 19 february 2020 and 24 february 2020 though the appellants had responded to the 20 part a emails hmrtc had addressed a communication on 27 february 2020 stating that since the budget session of the haryana vidhan sabha was in progress it was difficult at this stage to have consultations and to respond to the draft audit report as such a period of four weeks was sought to respond to the draft in view of this cag had sought an extension of eight weeks before the high court by filing an application on which notice was issued on 18 march 2020 returnable on 3 april 2020 thereafter the lockdown occasioned by covid 19 ensued cag by its further communications dated 18 march 2020 and 22 april 2020 sought the response of the hmrtc and the state government by 29 april 2020 a deadline beyond which it was stated that the final audit report would be prepared cag stated before the high court that the financial audit of the debt due had been performed by the auditors to whom the work had been assigned in accordance with the limited scope of audit which has been submitted in the court earlier cag stated that the financial audit had then been finalized since no response had been received from hmrtc or the state government 5 21 on 18 august 2020 a civil miscellaneous application was filed before the high court by rmgl and rmgsl pursuant to the order of the high court dated 20 september 2019 in accordance with which the cag had submitted its report in a sealed cover to the high court wherein the appellants sought a direction for a opening the sealed cover submitted by cag containing its report of the financial audit of the debt due in terms of the concession agreements and 5 cm 7881 cwp 2020 21 part a b directing the deposit of 80 per cent of the debt due in terms of the order of the high court dated 20 september 2019 22 on 2 september 2020 the high court issued notice on the application filed by the appellants and listed it on 10 september 2020 on 28 september 2020 the sealed cover was opened and the report of the cag was taken on the record the cag report adverts to the scope of the audit which was undertaken in respect of the debt due under the concession agreement dated 9 december 2009 with rmgl in the following extract the scope of audit was suggested by rmgl and hmrtc through communications and presentations the scope of audit as suggested by both the parties were examined and the scope of audit of debt due was accordingly firmed up the suggestions made through presentations and the scope of audit as decided by were submitted to the court vide cma no 15397 dated 20 november 2019 by cag it was also informed to the court that only those issues that are related and relevant to examination of the debt due as per concession agreement would be examined the scope of audit decided by cag and as intimated to the court has been placed at annexure 1b the issues mentioned in the scope provided by hmrtc like encumbrances and liabilities on the said metro project shareholding share in valuation of the assets of the concessionaire company change of shareholding fights criminal acts and liabilities etc which are said to have been inflicted on the company require detailed forensic and technical audits it is understood that such audits are ongoing this audit is limited to the examination of debt due as defined in the concession agreement 23 in computing the debt due the audit report notes that the actual cost of the project was rs 1 199 crores as against the budgeted cost of rs 1 088 crores since the cost overrun is to be contributed by the sponsors under the loan agreement this 22 part a would not have any impact on the debt due hence for the purpose of computing the debt due the project cost was taken as rs 1 088 crores in computing the debt due the audit report took into consideration i the principal component of the term loan and ii the interest component on the term loan in arriving at the debt due the conclusion which was drawn in the audit report is extracted below 6 conclusion the amount of debt due as per the audit which has been conducted within limited scope as detailed in earlier sections of the report has been worked out as rs 797 52 crores including interest upto 8 september 2019 other matters that have come to our attention and can have a significant impact on debt due are listed below our report is subject of the outcome of such matters an entity specific forensic audit of rmgl is being conducted by the lenders nclt as part of its resolution proceedings ordered on 01 january 2019 for the reopening and recasting of the accounts of il fs and two of its subsidiaries il fs transportation networks limited itnl and il fs financial services limited ifin in respect of financial years 2013 14 to 2017 18 under section 130 of the companies act 2013 the same is one of the basis of disclaimer of opinion given by statutory auditors of il fs for fy 2018 19 the contracts were awarded by rmgl to related parties i e irl worth rs 623 crore 52 per cent of total project cost is a subsidiary of itnl further inl and irl are the promoters in the rmgl new board of directors in january 2019 has initiated a third party forensic examination for the period from april 2013 to september 2018 in relation to certain companies of the group which is currently ongoing the same is one of the basis of disclaimer of opinion given by statutory auditors of il fs for fy2018 19 23 part a 9 packages which were awarded to irl were sub contracted to various related and unrelated parties as explained by the management this includes companies with irregularities as pointed out by income tax department as mentioned in the income tax show cause notice dated 15 11 2018 ref no adit inv 3 4 show cause notice enso 2018 19 251 income tax scrutiny assessments on going table 12 party wise break up of the packages sub contracted by irl amount in crore related parties sub contracting of irl level ieccl 248 unrelated parties others 311 companies with irregularities as 31 pointed out by lncome tax department balancing figure 33 total 623 our report is submitted solely for the purpose set forth in the first paragraph of this report this report relates only to the items specified and does not extend to any financial statements of rmgl taken as a whole the audit report for second appellant rmgsl computed the debt due at rs 1 609 88 crore including interest upto to 8 september 2019 the conclusion in the audit report is extracted below 6 conclusion the amount of debt due as per the audit which has been conducted within limited scope as detailed in earlier sections of the report has been worked out as rs 1 609 88 crore including interest upto 8 september 2019 other matters that have come to our attention and can have a significant impact on debt due are listed below our report is subject to the outcome of such matters 24 part a an entity specific forensic audit of rmgsl is being conducted by the lenders nclt as part of its resolution proceedings ordered on 01 january 2019 for the reopening and recasting of the accounts of il fs and two of its subsidiaries il fs transportation networks limited itnl and il fs financial services limited ifin in respect of financial years 2013 14 to 2017 18 under section 130 of the companies act 2013 the same is one of the basis of disclaimer of opinion given by statutory auditors of ilafs for fy 2018 198 the contract was awarded by rmgsl of related party i e tnl worth rs 1 803 crore 77 per cent of total project cost new board of directors in january 2019 has initiated a third party forensic examination for the period from april 2013 of september 2018 in relation to certain companies of the group which is currently ongoing the same is one of the basis of disclaimer of opinion given by statutory auditors of il fs for fy 2018 19 14 packages which were awarded to itnl as detailed above were subcontracted to various related and unrelated parties table 12 party wise break up of the packages sub contracted by itnl sub contract package amount parties no in crore related parties ieccl p1 367 irl p2 p2 a 1025 p4 14 unrelated parties others p3 144 balancing figure 267 total 1 803 irl further sub contracted it to the related parties and other parties which includes companies with irregularities as pointed out by income tax department as mentioned in the income tax show cause notice dated 15 11 2018 ref no aditiinv 3 4 show cause notice enso 2018 19 251 income tax scrutiny assessments is on going 25 part a table 13 party wise break up of the packages sub contracted by irl amount in crore particulars total of cost total cost incurred related parties il fs 29 3 technologies irl 75 7 unrelated 595 58 parties siemens compaines with 66 7 irregulariries as pointed out by income tax department others 221 22 balancing fiture 39 3 1 025 100 our report is submitted solely for the purpose set forth in the first paragraph of this report this report relates only for the items specified and does not extend to any financial statements of rmgsl taken as a whole 24 on 10 october 2020 an affidavit was filed before the high court by the advisor planning hmrtc on behalf of the respondents objecting to the audit report the substance of the objection was that the audit report had not considered critical aspects which shall have a direct bearing on the amount of the debt due in the course of the affidavit the following circumstances were highlighted i in exercise of powers under section 241 2 of the act of 2013 and in terms of the permission granted by the nclt the central government had reconstituted the board of the il fs the appellants parent company 26 part a whose affairs were being conducted in prejudicial to the public interest on 6 december 2018 a first information report fir had been lodged against rmgl rmgsl and sister concerns alleging that monies had been siphoned off from the group companies as against rmgl and rmgsl there were allegations that fake invoices had been raised as a result of which the cost of the metro rail project was significantly higher than comparable projects of dmrc as a result of which the rapid metro was incurring losses year on year the losses were occasioned by high interest cost entailed on huge capital expenditure which in turn was due to false and bogus invoices ii notices have been issued by the income tax department against irl indicting that the group companies were shell entities who had raised funds through bogus and unsecured loans and invoices iii serious fraud and investigation office sfio had commenced a probe into the affairs of the associated companies including il fs financial services ifs and itnl and iv investigations under the prevention of money laundering act 2002 have been initiated against il fs in this backdrop it was urged that the cag had not audited the accounts of the concessionaire rmgl and rmgsl in accordance with the scope of audit finalised by them the auditors it is stated had indicated that the amount of the debt due is 27 part a subject to the outcome of various matters which can have a significant impact on the debt due hence it was urged that the audit is incomplete and inconclusive 25 hmrtc tabulated its objections to the audit report in the course of the affidavit before the high court hmrtc has submitted that the scope of audit finalised by cag still remains incomplete and inconclusive 26 rmgl submitted its reply in which firstly it drew attention to the fact that the high court s order dated 20 september 2019 unequivocally obligates the respondents herein to pay 80 per cent of the debt due within 30 days of the cag report and no liberty has been granted to challenge the report at this stage secondly it was urged that despite ample opportunities provided by cag hmrtc had not furnished any objections to the draft report thirdly it was alleged that the objections filed before the high court is an attempt to delay the fulfillment of the obligation to pay 80 per cent of the debt due despite the entirety of project no 1 having been handed over a similar reply was also filed by rmgsl 27 an affidavit was also filed before the high court by cag in response to the objections filed by hmrtc in its affidavit dated 28 october 2020 cag noted that the scope of financial audit of debt due suggested by both the parties was examined by cag being the constitutional authority and after due consideration decided the scope of audit of debt due to be conducted and further it was decided that cag will examine only those issues that are related and relevant to examination of the debt due as per the concession agreements it was also decided that the issues mentioned in the scope provided by the hmrtc like encumbrances and liabilities on the said metro projects shareholdings share in valuation of the assets of the 28 part a concessionaire companies change of shareholding rights criminal acts liabilities etc which have been inflicted on the company are not related to the present audit these issues as well as other issues which may have impact on the viability of the project of relate to criminal acts etc as stated by the hmrtc can be got audited examined by hmrc through other agencies or through a separate forensic audit these facts and scope of audit decided by cag was duly submitted in this hon ble court vide additional affidavit dated 19 11 2019 submitted along with cm no 17584 of 2019 in cm no 15397 of 2019 cag further noted in the course of its affidavit that it had ensured that i the firm appointed for conducting the audit had no conflict of interest with rmgl rmgsl or any group company of the il fs group ii after the auditors had conducted the audit of the debt due it was examined by the office of the cag to ensure that the financial audit had been conducted and completed in terms of the scope of audit submitted before the high court on 19 november 2019 iii the auditors had completed the financial audit of the debt due in terms of the concession agreements iv the draft audit report was submitted to both the parties by emails dated 19 february and 24 february 2020 which was followed up with reminders on 18 march and 20 april 2020 v since no response had been received from hmrtc and the state government the report of the financial audit was finalised and submitted in a sealed cover to the high court 29 part a vi the objection that the audit report was incomplete and inconclusive did not hold any substance in that context cag stated 11 that the objections response as submitted vide affidavit dated 11 10 2020 has been considered and the same does not hold any substance on account of the following facts 1 cag of india being constitutional authority decided the scope of audit of debt due in terms of concession agreement and the same was also submitted to the high court on 20 11 2019 2 this is a financial audit of debt due and has been performed by the auditors m s sarc and associates as per the limited scope of audit the auditors have reported their findings as per the limited scope to arrive at the amount of debt due in terms of the applicable concession agreements the amount of debt due has been worked out after examination of documents as well as verification of records wherever required 3 the draft report was shared with the hmrtc but it did not respond despite repeated requests so the cag was constrained to finalise the report without the response of hmrtc 4 the issues pointed out like reconstitution of board of parent company il fs and investigation against its officers by enforcement directorate fir lodged truncated 1579 2021_c a no 000843 000844 2021 m s ą“ą“Øą“ ąµ¼ą“ ą“ąµ½ ą“²ą“Øą“± ą“±ą“ø ą“µąµ¼ą“ą“ø ą“ą“Øą“Ø ą“¤ ą“Æ ą“Ŗą“Ŗ ą“² ą“¤ ą“®ą“¤ ą“± ą“±ą“”ą“ø 2014 05 13 2007 ukhl 40 1 ą“ą“ ą“°ą“¤ą“¤ ą“Æ ą“ø ą“Ŗą“¤ ą“Ŗ ą“° ą“ą“ą“ ą“ą“¤ą“¤ ą“øą“¤ ą“µą“¤ ąµ½ ą“
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ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“«ą“Æąµ½ ą“²ą“ ą“Æ ą“Æ ą“Øą“¤ą“¤ ą“Øą“ ą“Æą“¤ ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ ą“
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ą“µą“øą“°ą“Ŗ ą“° ą“Øąµ½ą“ ą“Øą“¤ ą“² ą“² ą“ą“Øą“¤ą“¤ ąµ½ ą“¤ąµ¼ą“ą“®ą“¤ ą“² ą“² 1963 ą“²ą“² ą“²ą“·ą“”ą“µ ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“
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ą“ą“Ŗą“ą“¤ ą“ą“ ą“Ø ą“³ ą“³ ą“
ą“µą“ą“ ą“¶ą“Ŗ ą“° ą“Ŗą“ą“µą“°ą“¤ ą“ ą“ ą“Ø ą“¤ą“¤ ą“Æą“¤ą“¤ ą“®ą“¤ąµ½ ą“® ą“Øą“ø ą“²ą“ą“ ą“² ą“² ą“¤ą“¤ ą“Ø ą“³ ą“³ą“¤ ąµ½ ą“«ą“Æąµ½ ą“²ą“ ą“Æą“¤ ą“°ą“¤ ą“ą“£ą“Ŗ ą“° ą“ą“²ą“Ø ą“ą“ ą““ ą“ą“Ŗą“ ą“ą“¤ ąµ½ 1963 ą“²ą“² ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ą“ą“² ą“ ą“¬ą“¹ ą“®ą“ ą“Øą“²ą“Ŗą“ ą“ ą“ø ą“Ŗą“¤ ą“Ŗ ą“° ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ą“ą“² ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“²ą“øą“ąµ» 11 6 ą“
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ą“ą“Ŗą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“
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ą“µąµ¼ ą“ą“¤ą“¤ ąµ¼ą“ą“ ą“ą“Ŗ ą“° ą“®ą“ą“Øą“ ą“ ą“ ą“µą“ ą“ ą“ą“²ą“³ ą“¤ą“¤ ą“°ą“ø ą“ą“°ą“¤ ą“ ą“ ą“Æ ą“Ŗ ą“° ą“²ą“øą“ąµ» 11 ą“ą“² ą“ą“Æą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“
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ą“Ø ą“øą“°ą“¤ ą“ ą“ ą“ą“µą“²ą“±ą“ ą“° ą“ą“Ŗą“° ą“ą“ ą“°ą“²ą“Ø ą“Øą“¤ ąµ¼ą“ą“¦ ą“¦ ą“¶ą“¤ ą“ą“ ą“¤ą“¤ ą“°ą“¤ ą“ ą“ ą“ą“Æ ą“Ŗ ą“° ą“Øą“¤ ą“Æą“®ą“Øą“ ą“§ą“¤ ą“ą“ ą“°ą“¤ ą“®ą“± ą“ą“ ą“ą“Ŗ ą“° ą“ą“²ą“£ą“ą“¤ ąµ½ ą“ ą“ą“ ą“°ą“£ą“Ŗ ą“° ą“²ą“ą“ ą“£ą“ø ą“®ą“ ą“¤ ą“°ą“Ŗ ą“° ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“± ą“±ą“²ą“± ą“Øą“¤ ą“Æą“®ą“¤ ą“ ą“ ą“Øą“¤ą“ø ą“Øą“¤ ą“°ą“ ą“ą“°ą“¤ ą“ ą“ ą“ą“Æ ą“Ŗ ą“° ą“²ą“ ą“Æ ą“Æ ą“Øą“¤ą“ø ą“®ą“¤ąµ½ ą“Øą“¤ ą“² ą“µą“¤ ąµ½ ą“µą“° ą“Ø 48 ą“ą“²ą“Ø ą“ą“ ą““ ą“ą“Ŗą“ ą“ą“¤ ąµ½ ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ą“ą“² ą“ ą“¬ą“¹ ą“®ą“ ą“Øą“²ą“Ŗą“ ą“ ą“ø ą“Ŗą“¤ ą“Ŗ ą“° ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ą“ą“² ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“²ą“øą“ąµ» 11 6 ą“
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ą“ą“Ŗą“ą“ą“ø ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“° ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“²ą“Ø ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“ą“ø ą“ą“¤ ą““ą“¤ ą“²ą“² ą“µą“¤ ą“µą“¤ ą“§ ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ą“³ ą“ą“³ą“¤ ąµ½ ą“²ą“Ŗą“ ą“Ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“Æą“”ą“®ą“ ą“Æą“¤ ą“ ą“ ą“ą“¤ ą“ ą““ą“Æą“ ą“Øą“ ą“µą“¤ ą“² ą“² ą“ą“Øą“ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“Ø ą“Ŗ ą“° ą“®ą“ą“± ą“±ą“¤ą“ø 17 ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“²ą“øą“ąµ» 11 6 ą“
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ą“ą“Ŗą“ą“ą“ø ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“° ą“
ą“ą“Ŗą“ą“Æą“ø ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“Ø ą“Ŗ ą“° ą“ą“£ą“ø ą“ą“µ ą“°ą“£ ą“ ą“Ŗ ą“° ą“µą“Ø ą“¤ ą“Æą“¤ą“Ø ą“¤ ą“Æą“øą“®ą“ ą“Æ ą“°ą“£ ą“ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“Æą“”ą“ąµ¾ ą“ą“Æą“¤ą“¤ ą“Øą“ ąµ½ ą“¤ą“²ą“Ø ą“Ŗą“°ą“ø ą“Ŗą“°ą“Ŗ ą“° ą“¬ą“ ą“§ą“ą“®ą“ ą“ ą“Øą“®ą“¤ ą“² ą“² 16 02 2019 ą“²ą“² ą“ą“¤ą“°ą“µą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“®ą“² ą“Ŗą“±ą“ ą“ ą“Øą“Ø ą“¤ ą“Æą“ ą“Æą“µą“¤ ą“§ą“¤ ą“ą“ø ą“ą“¤ą“¤ ą“°ą“ ą“Æ ą“ø ą“²ą“Ŗą“·ą“Ø ą“¤ ą“Æąµ½ ą“² ą“¤ ą“µą“ø ą“²ą“Ŗą“± ą“±ą“¤ ą“·ąµ» ą“ą“øą“ø ą“ąµ½ ą“Ŗą“¤ ą“øą“¤ ą“Øą“® ą“Ŗąµ¼ 305 2019 ą“¤ą“³ ą“³ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø 14 ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“²ą“Ø ą“ą“Ŗą“Æ ą“ ą“¤ą“¤ą“²ą“Æ ą“øą“Ŗ ą“° ą“¬ą“Øą“¤ ą“ ą“ ą“³ ą“³ ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“ą“³ ą“²ą“ ą“®ą“± ą“¤ą“¤ ą“° ą“®ą“ ą“Øą“ ą“ą“³ą“ ą“Æ ą“Ŗą“øą“ ąµ¼ ą“ą“ ą“°ą“¤ą“¤ v ą“®ą“ ą“ą“® ą“®ą“µ ą“Æ ą“£ą“¤ ą“ą“ą“·ąµ» 20107 ą“ą“Ŗ ą“° ą“ą“ą“ ąµ¾ą“”ąµ» ą“ ą“ ą“°ą“¤ ą“Æą“ ą“ą“ø v ą“®ą“ą“ą“·ą“ø ą“Ŗą“Øą“¤ 8 ą“ą“Ŗ ą“° ą“”ąµ½ą“¹ą“¤ ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“Ŗą“ ą“ø ą“øą“ ą“ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø 16 02 2019 ą“²ą“² ą“ą“¤ą“°ą“µą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“øą“ø ą“ąµ½ ą“Ŗą“¤ ą“øą“¤ ą“Øą“® ą“Ŗąµ¼ 305 2019 ąµ½ ą“ą“ą“ ąµ¾ą“”ąµ» ą“ ą“ ą“°ą“¤ ą“Æą“ ą“ą“ø ą“ą“ą“øą“¤ ąµ½ ą“«ą“Æąµ½ ą“²ą“ ą“Æ ą“ą“øą“ø ą“ąµ½ ą“Ŗą“¤ ą“ą“øą“ø ą“ąµ½ ą“Ŗą“¤ ą“øą“¤ ą“Øą“® ą“Ŗąµ¼ 305 2019 ą“¤ą“³ ą“³ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ø 15 ą“²ą“øą“ąµ» 11 ą“Øą“ø ą“ą“¤ ą““ą“¤ ą“² ą“³ ą“³ ą“ą“° ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“ą“° ą“ą“ą“ ą“ą“¤ą“¤ ą“®ąµ»ą“Ŗą“ ą“²ą“ ą“«ą“Æąµ½ ą“²ą“ ą“Æ ą“Æą“²ą“Ŗą“ą“ą“£ą“¤ą“ ą“ą“Æą“ ą“² ą“Ŗ ą“° ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“Æą“¤ ą“²ą“² ą“ą“° ą“Ŗą“ą“¤ą“Ø ą“¤ ą“Æą“ ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ą“³ ą“Ŗ ą“° ą“¬ą“ ą“§ą“ą“®ą“² ą“² ą“ ą“¤ą“¤ą“¤ ą“Øą“ ą“² ą“Ŗ ą“° 7 2010 115 drj 438 db 8 2018 del 10050 slp c ą“ ą“¤ą“¬ ą“°ą“° ą“®ą“¹ ą“Øą“¤ą“® ą“Øą“ø ą“ą“¤ą“® ą“°ą“°ą“Æą“° ą“³ ą“³ ą“ą“øą“ø ą“øą“® ą“øą“® ą“ąµŗą“²ą“² ąµ» no 40627 2018 31 01 2019 ą“°ą“Ø ą“Øą“ø ą“¤ą“³ ą“³ą“® ą“Æą“® ą“°ą“° ą“Øą“° 18 ą“
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ą“§ą“¤ ą“ą“ ą“°ą“²ą“Ŗą“ ą“¤ą“¤ ą“Æ ą“µą“Ø ą“¤ ą“Æą“ ą“¤ą“¤ ą“ą“ą“ ą“øą“ø ą“„ą“ ą“Ŗą“Øą“¤ą“¤ ą“ą“Øą“ ą“ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ŗ ą“° ą“ą“° ą“Ŗą“µą“ą“¦ą“¶ą“¤ ą“ ą“µą“ ą“£ą“¤ ą“ą“Ø ą“¤ ą“Æ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ą“Øą“¤ ąµ½ ą“øą“ą“ ą“ą“ ą“µą“¤ ą“ ą“
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ą“ą“¦ ą“¦ ą“¹ą“Ŗ ą“° ą“
ą“§ą“¤ ą“ą“ ą“°ą“²ą“Ŗą“ ą“¤ą“¤ ą“Æ ą“µą“Ø ą“¤ ą“Æą“ ą“¤ą“¤ ą“ą“ą“ ą“øą“ø ą“„ą“ ą“Ŗą“Øą“¤ą“¤ ą“ą“Øą“ ą“ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Ŗ ą“° 10 ą“Øą“¤ ą“Æą“®ą“Ø ą“Øą“ą“Ŗą“ą“¤ ą“ą“ø ą“µą“¤ ą“¶ą“ą“ ą“øą“Ø ą“¤ ą“Æą“¤ ą“Øąµ½ą“ ą“µą“ ą“Øą“ ą“£ą“ø ą“Øą“¤ ą“Æą“®ą“Øą“Ŗ ą“° ą“Øą“ą“¤ą“ ą“Ø ą“³ ą“³ ą“
ą“§ą“¤ ą“ą“ ą“°ą“Ŗ ą“° ą“ą“Æąµ¼ą“Ø ą“Øą“Ø ą“¤ ą“Æą“ ą“Æą“ ą“§ą“¤ ą“ą“ ą“°ą“øą“ø ą“„ą“ ą“Øą“¤ą“¤ ą“Ø 10 1996 11 9 ą“ą“ą“® ą“°ą“² ą“µą“ą“° ą“Ŗą“ø 22 ą“Øąµ½ą“ą“¤ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Øą“¤ą“ø 20 ą“ą“øą“ø ą“¬ą“¤ ą“Ŗą“¤ ą“ą“ą“ ą“Ŗą“ą“ ą“ąµ½ ą“ą“ą“¤ ą“Øą“¤ ą“Æą“±ą“¤ ą“Ŗ ą“° ą“ą“ø ą“² ą“¤ ą“®ą“¤ ą“± ą“±ą“”ą“ø11 ą“ą“Ø ą“ą“ą“øą“¤ ąµ½ ą“ ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ą“²ą“² ą“ą“° 7 ą“
ą“Ŗ ą“° ą“ ą“ą“°ą“£ą“ą“ą“Øą“ ą“²ą“¬ą“ą“ø 1996 ą“ą“ą“¤ ą“²ą“² ą“µą“ ą“Ŗą“ø 11 ą“²ą“Ø ą“øą“ ą“§ą“Ø ą“¤ ą“Æą“¤ą“ąµ¾ ą“µą“¤ ą“² ą“Æą“¤ ą“° ą“¤ ą“¤ ą“ą“Æ ą“Ŗ ą“° ą“ą“¤ ą“ą“ą“¤ ą“²ą“Ø ą“Ŗą“¦ą“¤ą“¤ ą“ą“µą“¶ą“Ø ą“¤ ą“Æą“²ą“Ŗą“ ą“Øą“¤ą“ø ą“ ą“¤ ą“«ą“ø ą“ą“øą“¤ ą“øą“ø ą“
ą“²ą“² ą“² ą“ą“¤ ąµ½ ą“
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ą“§ą“¤ ą“ą“ ą“°ą“Ŗ ą“° ą“ą“° ą“ą“°ą“£ą“ ą“ ą“
ą“§ą“¤ ą“ą“ ą“°ą“¤ ą“²ą“Æ ą“
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ą“¤ą“°ą“Ŗ ą“° ą“
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ą“¤ą“°ą“²ą“®ą“ ą“° ą“
ą“ą“Ŗą“ ą“®ą“ą“Øą“ ą“ ą“ ą“µą“ ą“ ą“ą“ą“¤ ą“ą“ø ą“ą““ą“¤ ą“Æą“ ą“¤ą“Ŗą“ą“Ŗ ą“° ą“ą“Æą“¤ą“ø ą“Ŗą“°ą“Ø ą“¤ ą“Æą“ ą“Ŗą“®ą“ ą“Æ ą“ą“Øą“² ą“² 23 ą“ą“ą“¦ą“ą“¤ą“¤ ą“ą“ø ą“ą“¶ą“·ą“®ą“³ ą“³ ą“
ą“µą“øą“ø ą“„ 23 10 2015 ą“®ą“¤ąµ½ ą“Ŗą“ ą“¬ą“² ą“Ø ą“¤ ą“Æą“¤ą“¤ ąµ½ ą“µą“Ø ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ąµ»ą“”ą“ø ą“ą“ą“ ąµŗą“øą“¤ ą“² ą“¤ ą“ą“Æą“·ąµ» ą“
ą“²ą“®ąµ»ą“²ą“” ą“® ą“Øą“ø ą“ą“ą“ø 2015 ą“µą““ą“¤ ą“Æą“ ą“£ą“ø 1996 ą“²ą“² ą“ą“ą“¤ ą“Øą“ø ą“ą“ą“¦ą“ą“¤ą“¤ ą“µą“° ą“¤ą“¤ ą“Æą“¤ą“ø ą“ą“² ą“ ą“ą“® ą“®ą“¤ ą“·ąµ» ą“ą“«ą“ø ą“ą“Øą“Ø ą“¤ ą“Æą“Æ ą“²ą“ 246 ą“®ą“¤ą“ø ą“±ą“¤ ą“ą“Ŗą“ ąµ¼ą“ ą“ą“¤ ą“²ą“Ø ą“¶ ą“Ŗą“ ąµ¼ą“¶ą“Ŗą“ą“ ą“°ą“®ą“ ą“Æą“¤ ą“° ą“Ø ą“ą“®ą“² ą“Ŗą“±ą“ ą“ ą“ą“ą“¦ą“ą“¤ą“¤ 2015 ą“²ą“² ą“ą“ą“¦ą“ą“¤ą“¤ ą“ą“ ą“°ą“Ø ą“¤ ą“Æą“®ą“ ą“Æ ą“® ą“Øą“ø ą“®ą“ ą“± ą“±ą“ ą“ąµ¾ ą“µą“° ą“¤ą“¤ i ą“¤ą“ą“¦ ą“¦ ą“¶ą“¤ ą“Æą“®ą“ ą“Æ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ą“Ø ą“ą“³ą“¤ ąµ½ ą“Øą“¤ ą“Æą“®ą“Øą“ ą“§ą“¤ ą“ą“ ą“°ą“Ŗ ą“° 27 ą“Ŗą“ą“Æą“ ą“ą“¤ ą“ą“ ą“µ ą“Ø ą“Øą“¤ ą“Æą“®ą“Øą“ ą“§ą“¤ ą“ą“ ą“°ą“¤ ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“ ą“¤ ą“«ą“ø ą“ą“øą“¤ ą“øą“ø ą“ą“Øą“¤ą“ø ą“®ą“ ą“±ą“¤ ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“ą“Æą“¤ ą“
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ą“²ą“² ą“² ą“ą“¤ ąµ½ ą“øą“¬ą“ø ą“²ą“øą“ąµ» 5 ą“
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ą“¤ą“°ą“¤ą“¤ ąµ½ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“ø ą“²ą“øą“ąµ» 11 6 ą“Øą“ø ą“ą“¤ ą““ą“¤ ą“² ą“³ ą“³ ą“ą“Ŗą“² ą“² ą“²ą“¤ ą“ą“ą“·ą“Øą“ø ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“²ą“Ø ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“¬ą“ ą“§ą“ą“®ą“ ą“ ą“Ŗ ą“° 46 ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“ø 1940ą“Æą“¤ ą“²ą“² ą“²ą“øą“ąµ» 20 ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“ą“ ą“ą“¤ą“¤ ą“®ąµ»ą“Ŗą“ ą“²ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ ą“°ą“¤ ą“²ą“®ą“Øą“¤ ą“²ą“Ø ą“ą“£ą“ą“¤ ą“²ą“² ą“ ą“ą“ ą“Ø ą“Ŗ ą“° ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ ą“°ą“¤ ą“²ą“®ą“Øą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“° ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“± ą“±ą“±ą“¤ ą“²ą“Ø ą“Øą“¤ ą“Æą“®ą“¤ ą“ ą“ ą“Øą“¤ą“¤ ą“Ø ą“Ŗ ą“° ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“ą“µą“¶ą“Ø ą“¤ ą“Æą“®ą“ ą“£ą“ø ą“ą“Øą“¤ą“¤ ąµ½ ą“¤ąµ¼ą“ą“®ą“¤ ą“² ą“² ą“²ą“øą“ąµ» 20 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“²ą“Ŗą“ ą“øą“¤ ą“”ą“¤ ą“ ą“øą“ø ą“ą“ ą“¤ ą“¤ą“®ą“ ą“Æ ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ąµ½ ą“øą“®ąµ¼ą“Ŗą“¤ ą“ą“ą“£ą“¤ ą“£ą“ø 5 2010 6 mh lj 316 6 2019 1 air bom r 249 16 ą“ą“Øą“¤ą“¤ ą“Øą“ ąµ½ 1963 ą“²ą“² ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“²ą“² ą“µą“Ø ą“¤ ą“Æą“µą“ø ą“„ą“ąµ¾ ą“
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ą“µą“øą“°ą“Ŗ ą“° ą“Øąµ½ą“ ą“Øą“¤ ą“² ą“² ą“ą“Øą“¤ą“¤ ąµ½ ą“¤ąµ¼ą“ą“®ą“¤ ą“² ą“² 1963 ą“²ą“² ą“²ą“·ą“”ą“µ ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“
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ą“ą“Ŗą“ą“ą“ø ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“° ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“²ą“Ø ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“ą“ø ą“ą“¤ ą““ą“¤ ą“²ą“² ą“µą“¤ ą“µą“¤ ą“§ ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ą“³ ą“ą“³ą“¤ ąµ½ ą“²ą“Ŗą“ ą“Ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“Æą“”ą“®ą“ ą“Æą“¤ ą“ ą“ ą“ą“¤ ą“ ą““ą“Æą“ ą“Øą“ ą“µą“¤ ą“² ą“² ą“ą“Øą“ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“Ø ą“Ŗ ą“° ą“®ą“ą“± ą“±ą“¤ą“ø 17 ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“²ą“øą“ąµ» 11 6 ą“
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ą“¤ą“Ø ą“¤ ą“Æą“ ą“µą“¶ą“Ø ą“¤ ą“Æą“Ŗ ą“° ą“ą“£ą“ø ą“ ą“ą“ą“øą“¤ ą“²ą“Ø ą“µą“ø ą“¤ ą“¤ą“ą“³ą“¤ ą“ą“Ø ą“® ąµ½ ą“ą“®ą“² ą“Ŗą“±ą“ ą“ ą“Øą“¤ ą“Æą“®ą“Ŗ ą“° ą“Ŗą“ą“Æą“ ą“ą“¤ ą“ ą“ ą“ą“® ą“Ŗą“ ąµ¾ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Øą“ø ą“ą“¤ ą““ą“¤ ąµ½ ą“Ŗą“±ą“ ą“ą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“”ą“¤ ą“Øą“ø ą“ą“³ ą“³ą“¤ ą“² ą“ ą“£ą“ø ą“²ą“øą“ąµ» 11 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“«ą“Æąµ½ ą“²ą“ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Øą“¤ą“ø ą“ą“Øą“ø ą“ą“ ą“£ą“ ą“Ŗ ą“° 29 04 2020 ą“²ą“² ą“ą“¤ą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“Øą“ ąµ¼ą“ ą“ąµ½ ą“Ŗ ą“±ą“²ą“Ŗą“ ą“µą“¤ ą“ ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“Øą“ ą“ ą“ą“¤ ą“øą“ø ą“¬ą“¤ ą“ą“øą“ø ą“ąµ» ą“ąµ½ ą“¤ą“²ą“Ø 09 06 2020 ą“²ą“² ą“®ą“± ą“Ŗą“ą“¤ ą“Æą“¤ ą“² ą“²ą“ ą“Øą“¤ ą“°ą“ ą“ą“°ą“¤ ą“ ą“ą“¤ ą“° ą“Ø 11 ą“ą“Ŗ ą“° ą“µą“ ą“Ŗą“¤ ą“Øą“ø ą“ą“¤ ą““ą“¤ ąµ½ ą“µą“° ą“Ø ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“ ą“ ą“®ą“Øą“¤ ąµ½ ą“«ą“Æąµ½ ą“²ą“ ą“Æą“¤ą“ø 24 07 2020 ą“Øą“ø ą“ą“£ą“ø ą“
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ą“¤ą“°ą“Ŗ ą“° ą“
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ą“¤ą“°ą“¤ą“¤ ąµ½ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“ø ą“²ą“øą“ąµ» 11 6 ą“Øą“ø ą“ą“¤ ą““ą“¤ ą“² ą“³ ą“³ ą“ą“Ŗą“² ą“² ą“²ą“¤ ą“ą“ą“·ą“Øą“ø ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“²ą“Ø ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“¬ą“ ą“§ą“ą“®ą“ ą“ ą“Ŗ ą“° 46 ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“ø 1940ą“Æą“¤ ą“²ą“² ą“²ą“øą“ąµ» 20 ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“ą“ ą“ą“¤ą“¤ ą“®ąµ»ą“Ŗą“ ą“²ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ ą“°ą“¤ ą“²ą“®ą“Øą“¤ ą“²ą“Ø ą“ą“£ą“ą“¤ ą“²ą“² ą“ ą“ą“ ą“Ø ą“Ŗ ą“° ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ ą“°ą“¤ ą“²ą“®ą“Øą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“° ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“± ą“±ą“±ą“¤ ą“²ą“Ø ą“Øą“¤ ą“Æą“®ą“¤ ą“ ą“ ą“Øą“¤ą“¤ ą“Ø ą“Ŗ ą“° ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“ą“µą“¶ą“Ø ą“¤ ą“Æą“®ą“ ą“£ą“ø ą“ą“Øą“¤ą“¤ ąµ½ ą“¤ąµ¼ą“ą“®ą“¤ ą“² ą“² ą“²ą“øą“ąµ» 20 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“²ą“Ŗą“ ą“øą“¤ ą“”ą“¤ ą“ ą“øą“ø ą“ą“ ą“¤ ą“¤ą“®ą“ ą“Æ ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ąµ½ ą“øą“®ąµ¼ą“Ŗą“¤ ą“ą“ą“£ą“¤ ą“£ą“ø 5 2010 6 mh lj 316 6 2019 1 air bom r 249 16 ą“ą“Øą“¤ą“¤ ą“Øą“ ąµ½ 1963 ą“²ą“² ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“²ą“² ą“µą“Ø ą“¤ ą“Æą“µą“ø ą“„ą“ąµ¾ ą“
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ą“µą“øą“°ą“Ŗ ą“° ą“Øąµ½ą“ ą“Øą“¤ ą“² ą“² ą“ą“Øą“¤ą“¤ ąµ½ ą“¤ąµ¼ą“ą“®ą“¤ ą“² ą“² 1963 ą“²ą“² ą“²ą“·ą“”ą“µ ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“
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ą“ą“Ŗą“ą“ą“ø ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“° ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“²ą“Ø ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“ą“ø ą“ą“¤ ą““ą“¤ ą“²ą“² ą“µą“¤ ą“µą“¤ ą“§ ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ą“³ ą“ą“³ą“¤ ąµ½ ą“²ą“Ŗą“ ą“Ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“Æą“”ą“®ą“ ą“Æą“¤ ą“ ą“ ą“ą“¤ ą“ ą““ą“Æą“ ą“Øą“ ą“µą“¤ ą“² ą“² ą“ą“Øą“ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“Ø ą“Ŗ ą“° ą“®ą“ą“± ą“±ą“¤ą“ø 17 ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“²ą“øą“ąµ» 11 6 ą“
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ą“¤ą“Ø ą“¤ ą“Æą“ ą“µą“¶ą“Ø ą“¤ ą“Æą“Ŗ ą“° ą“ą“£ą“ø ą“ ą“ą“ą“øą“¤ ą“²ą“Ø ą“µą“ø ą“¤ ą“¤ą“ą“³ą“¤ ą“ą“Ø ą“® ąµ½ ą“ą“®ą“² ą“Ŗą“±ą“ ą“ ą“Øą“¤ ą“Æą“®ą“Ŗ ą“° ą“Ŗą“ą“Æą“ ą“ą“¤ ą“ ą“ ą“ą“® ą“Ŗą“ ąµ¾ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Øą“ø ą“ą“¤ ą““ą“¤ ąµ½ ą“Ŗą“±ą“ ą“ą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“”ą“¤ ą“Øą“ø ą“ą“³ ą“³ą“¤ ą“² ą“ ą“£ą“ø ą“²ą“øą“ąµ» 11 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“«ą“Æąµ½ ą“²ą“ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Øą“¤ą“ø ą“ą“Øą“ø ą“ą“ ą“£ą“ ą“Ŗ ą“° 29 04 2020 ą“²ą“² ą“ą“¤ą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“Øą“ ąµ¼ą“ ą“ąµ½ ą“Ŗ ą“±ą“²ą“Ŗą“ ą“µą“¤ ą“ ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“Øą“ ą“ ą“ą“¤ ą“øą“ø ą“¬ą“¤ ą“ą“øą“ø ą“ąµ» ą“ąµ½ ą“¤ą“²ą“Ø 09 06 2020 ą“²ą“² ą“®ą“± ą“Ŗą“ą“¤ ą“Æą“¤ ą“² ą“²ą“ ą“Øą“¤ ą“°ą“ ą“ą“°ą“¤ ą“ ą“ą“¤ ą“° ą“Ø 11 ą“ą“Ŗ ą“° ą“µą“ ą“Ŗą“¤ ą“Øą“ø ą“ą“¤ ą““ą“¤ ąµ½ ą“µą“° ą“Ø ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“ ą“ ą“®ą“Øą“¤ ąµ½ ą“«ą“Æąµ½ ą“²ą“ ą“Æą“¤ą“ø 24 07 2020 ą“Øą“ø ą“ą“£ą“ø ą“
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ą“¤ą“°ą“Ŗ ą“° ą“
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ą“¤ą“°ą“¤ą“¤ ąµ½ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“ø ą“²ą“øą“ąµ» 11 6 ą“Øą“ø ą“ą“¤ ą““ą“¤ ą“² ą“³ ą“³ ą“ą“Ŗą“² ą“² ą“²ą“¤ ą“ą“ą“·ą“Øą“ø ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“²ą“Ø ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“¬ą“ ą“§ą“ą“®ą“ ą“ ą“Ŗ ą“° 46 ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ą“ø 1940ą“Æą“¤ ą“²ą“² ą“²ą“øą“ąµ» 20 ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“ą“ ą“ą“¤ą“¤ ą“®ąµ»ą“Ŗą“ ą“²ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ ą“°ą“¤ ą“²ą“®ą“Øą“¤ ą“²ą“Ø ą“ą“£ą“ą“¤ ą“²ą“² ą“ ą“ą“ ą“Ø ą“Ŗ ą“° ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“ ą“°ą“¤ ą“²ą“®ą“Øą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“° ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“± ą“±ą“±ą“¤ ą“²ą“Ø ą“Øą“¤ ą“Æą“®ą“¤ ą“ ą“ ą“Øą“¤ą“¤ ą“Ø ą“Ŗ ą“° ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“ą“µą“¶ą“Ø ą“¤ ą“Æą“®ą“ ą“£ą“ø ą“ą“Øą“¤ą“¤ ąµ½ ą“¤ąµ¼ą“ą“®ą“¤ ą“² ą“² ą“²ą“øą“ąµ» 20 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“²ą“Ŗą“ ą“øą“¤ ą“”ą“¤ ą“ ą“øą“ø ą“ą“ ą“¤ ą“¤ą“®ą“ ą“Æ ą“ą“ą“ ą“ą“¤ą“¤ ą“Æą“¤ ąµ½ ą“øą“®ąµ¼ą“Ŗą“¤ ą“ą“ą“£ą“¤ ą“£ą“ø 5 2010 6 mh lj 316 6 2019 1 air bom r 249 16 ą“ą“Øą“¤ą“¤ ą“Øą“ ąµ½ 1963 ą“²ą“² ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“²ą“² ą“µą“Ø ą“¤ ą“Æą“µą“ø ą“„ą“ąµ¾ ą“
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ą“µą“øą“°ą“Ŗ ą“° ą“Øąµ½ą“ ą“Øą“¤ ą“² ą“² ą“ą“Øą“¤ą“¤ ąµ½ ą“¤ąµ¼ą“ą“®ą“¤ ą“² ą“² 1963 ą“²ą“² ą“²ą“·ą“”ą“µ ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“
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ą“ą“Ŗą“ą“ą“ø ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“²ą“² ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“° ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“²ą“Ø ą“²ą“·ą“”ą“” ą“Æ ąµ¾ ą“ ą“¦ą“¤ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“ø 1963 ą“ą“ø ą“ą“¤ ą““ą“¤ ą“²ą“² ą“µą“¤ ą“µą“¤ ą“§ ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ą“³ ą“ą“³ą“¤ ąµ½ ą“²ą“Ŗą“ ą“Ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“Æą“”ą“®ą“ ą“Æą“¤ ą“ ą“ ą“ą“¤ ą“ ą““ą“Æą“ ą“Øą“ ą“µą“¤ ą“² ą“² ą“ą“Øą“ø ą“²ą“ ą“² ą“Æą“¤ ą“®ą“ąµ¾ą“ ą“ ą“¬ą“ ą“§ą“ą“®ą“ ą“Æ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ą“Ø ą“Ŗ ą“° ą“®ą“ą“± ą“±ą“¤ą“ø 17 ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“²ą“øą“ąµ» 11 6 ą“
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ą“¤ą“Ø ą“¤ ą“Æą“ ą“µą“¶ą“Ø ą“¤ ą“Æą“Ŗ ą“° ą“ą“£ą“ø ą“ ą“ą“ą“øą“¤ ą“²ą“Ø ą“µą“ø ą“¤ ą“¤ą“ą“³ą“¤ ą“ą“Ø ą“® ąµ½ ą“ą“®ą“² ą“Ŗą“±ą“ ą“ ą“Øą“¤ ą“Æą“®ą“Ŗ ą“° ą“Ŗą“ą“Æą“ ą“ą“¤ ą“ ą“ ą“ą“® ą“Ŗą“ ąµ¾ ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“ą“ą“¤ ą“²ą“Ø ą“ąµ¼ą“ ą“ą“¤ ą“ą“¤ ąµ¾ 137 ą“Øą“ø ą“ą“¤ ą““ą“¤ ąµ½ ą“Ŗą“±ą“ ą“ą“¤ ą“°ą“¤ ą“ ą“ ą“Ø ą“² ą“¤ ą“®ą“¤ ą“ą“± ą“±ą“·ąµ» ą“Ŗą“¤ ą“°ą“¤ ą“”ą“¤ ą“Øą“ø ą“ą“³ ą“³ą“¤ ą“² ą“ ą“£ą“ø ą“²ą“øą“ąµ» 11 ą“Ŗą“ą“ ą“°ą“®ą“³ ą“³ ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“«ą“Æąµ½ ą“²ą“ ą“Æą“¤ ą“°ą“¤ ą“ ą“ ą“Øą“¤ą“ø ą“ą“Øą“ø ą“ą“ ą“£ą“ ą“Ŗ ą“° 29 04 2020 ą“²ą“² ą“ą“¤ą“ø ą“Ŗą“ą“ ą“°ą“Ŗ ą“° ą“ą“Øą“ ąµ¼ą“ ą“ąµ½ ą“Ŗ ą“±ą“²ą“Ŗą“ ą“µą“¤ ą“ ą“ ą“ąµ¼ą“¬ą“¤ ą“ą“ ą“° ą“·ąµ» ą“ą“Øą“ ą“ ą“ą“¤ ą“øą“ø ą“¬ą“¤ ą“ą“øą“ø ą“ąµ» ą“ąµ½ ą“¤ą“²ą“Ø 09 06 2020 ą“²ą“² ą“®ą“± ą“Ŗą“ą“¤ ą“Æą“¤ ą“² ą“²ą“ ą“Øą“¤ ą“°ą“ ą“ą“°ą“¤ ą“ ą“ą“¤ ą“° ą“Ø 11 ą“ą“Ŗ ą“° ą“µą“ ą“Ŗą“¤ ą“Øą“ø ą“ą“¤ ą““ą“¤ ąµ½ ą“µą“° ą“Ø ą“ą“Ŗą“¤ ą“ą“ą“·ąµ» ą“Ŗą“¹ą“ą“ą“ ą“ą“¤ą“¤ ą“ ą“ ą“®ą“Øą“¤ ąµ½ ą“«ą“Æąµ½ ą“²ą“ ą“Æą“¤ą“ø 24 07 2020 ą“Øą“ø ą“ą“£ą“ø ą“
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ą“¤ą“°ą“Ŗ ą“° ą“
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code of civil procedure 1908 by the petitioner wife seeking transfer of divorce petition no 10 2017 titled as neeraj kumar gupta vs smt jyoti jaiswal filed by the respondent husband in the court of ld additional district session judge lalsot district dausa rajasthan to the competent court at ghazipur up heard learned counsel on both sides and perused the record considering the facts and circumstances and the material on the record this court is of the opinion that prayer for transfer of proceedings from the court of ld additional district session judge lalsot district dausa rajasthan to the competent court at ghazipur up is justified consequently the divorce petition no 10 2017 titled as neeraj kumar gupta vs smt jyoti jaiswal pending in the court of ld additional district sessions judge lalsot district dausa rajasthan is transferred to the court of competent jurisdiction if any at ghazipur u p the additional district and sessions court at rajasthan is directed to transmit the entire record of the aforesaid case to the transferee court at ghazipur u p immediately the transferee court shall decide the case so transferred as expeditiously as possible the registry is directed to send a copy of this order to both the courts immediately by e mail for compliance of this order this transfer petition is allowed accordingly in the above terms j b v nagarathna new delhi november 22 2021 in the supreme court of india civil original jurisdiction transfer petition civil no 113 of 2018 jyoti jaiswal petitioner s versus neeraj kumar gupta respondent s o r d e r this transfer petition has been filed under section 25 of the code of civil procedure 1908 by the petitioner wife seeking transfer of divorce petition no 10 2017 titled as neeraj kumar gupta vs smt jyoti jaiswal filed by the respondent husband in the court of ld additional district session judge lalsot district dausa rajasthan to the competent court at ghazipur up heard learned counsel on both sides and perused the record considering the facts and circumstances and the material on the record this court is of the opinion that prayer for transfer of proceedings from the court of ld additional district session judge lalsot district dausa rajasthan to the competent court at ghazipur up is justified consequently the divorce petition no 10 2017 titled as neeraj kumar gupta vs smt jyoti jaiswal pending in the court of ld additional district sessions judge lalsot district dausa rajasthan is transferred to the court of competent jurisdiction if any at ghazipur u p the additional district and sessions court at rajasthan is directed to transmit the entire record of the aforesaid case to the transferee court at ghazipur u p immediately the transferee court shall decide the case so transferred as expeditiously as possible the registry is directed to send a copy of this order to both the courts immediately by e mail for compliance of this order this transfer petition is allowed accordingly in the above terms j b v nagarathna new delhi november 22 2021 1677 2007_c a no 001844 001844 2010 versus rama murthy anr the high court 2006 09 16 1844 of 2010 1845 of 2010 bhagat v rajinder chinnammal v p lal v chando 1993 sc 1139 1 in the supreme court of india civil appellate jurisdiciton civil appeal no 1844 of 2010 h s goutham appellant versus rama murthy and anr etc respondents with civil appeal no 1845 of 2010 h m ravindra kumar appellant versus rama murthy ors respondents j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment and order dated 16 09 2006 passed by the high court of karnataka at bangalore in rfa no 274 of 2001 mfa no 3934 of 2000 and crp no 3297 of 2000 the original plaintiff and the subsequent auction purchaser who purchased the property in 2 question in the court auction in execution proceedings have preferred the present appeals 2 the facts leading to the present appeals in nutshell are as under 2 1 that as per the case of the original plaintiff the respondents herein original defendants hereinafter referred to as the original defendants borrowed a sum of rs 1 00 000 from the father of the appellant herein original plaintiff hereinafter referred to as the original plaintiff in the year 1990 by way of a simple mortgage deed and then further rs 50 000 by way of a promissory note in the year 1992 the deed of simple mortgage was executed on 11 07 1990 the mortgage deed was executed between the original defendants as mortgager and one partnership firm namely c h shantilal co as mortgagee the original plaintiff is the son of shri c h shantilal who was one of the partners of the firm which was dissolved on 17 12 1994 that as per the case of the original plaintiff the mortgager borrowed a loan of rs 1 00 000 from mortgagee in order to clear their earlier debt in lieu of mortgage of property suit property that the mortgager was to repay rs 1 00 000 to the mortgagee within a period of 5 years from the 3 day the deed was entered into along with interest at the rate of 1 5 per mensem or 18 per annum that the interest was required to be paid by the mortgagers to the mortgagee every month on or before the 10th of each month according to the original plaintiff in the event of failure to pay the principal or interest within the period the mortgagee will be entitled to enforce the said mortgage and cause the property or any portion sold and appropriate the proceeds towards the satisfaction of the mortgage deed a promissory note was also executed by the original defendants while taking a further sum of rs 50 000 on 13 12 1992 and created a further charge in the mortgaged property that as the defendants mortgagers did not pay the aforesaid amount the plaintiff filed a suit being o s no 3376 of 1995 on 30 5 1995 before the court of learned city civil judge at bangalore for a sum of rs 2 50 000 together with interest thereon it was also further prayed that on failure of the defendants to pay the decretal amount the plaintiff shall be at liberty to sell the mortgaged property and the sale considerations so realized to be adjusted over the decretal amount according to the plaintiff the defendants filed a written statement on 31 05 1995 and admitted 4 borrowing of rs 1 50 000 according to the plaintiff the defendants were represented by an advocate a compromise settlement was entered into between the plaintiff and the defendants on 01 06 1995 the defendants agreed to pay to the plaintiff a sum of rs 2 50 000 in a monthly installment of rs 5 000 within three years learned trial court accordingly decreed the suit in terms of the compromise vide judgment and decree dated 01 06 1995 that the plaintiff filed an execution petition being execution petition no 232 of 1996 before the court of city civil judge bangalore on 28 02 1996 the judgment debtor defendant entered appearance through an advocate on 21 06 1996 in the execution petition that the judgment debtor defendant filed objections in the execution petition and contended that the decree dated 01 06 1995 was obtained by fraud by order dated 03 03 1998 the executing court overruled the objections of the judgment debtor defendant and specifically observed that the objections of the judgment debtor that the decree has been obtained by fraud mis representation etc are overruled by overruling the objections raised by the judgment debtor learned executing court specifically observed that the judgment debtor has failed to lead any 5 evidence in support of his objections that the decree was obtained by fraud or mis representation that thereafter learned executing court issued sale proclamation of the mortgaged property on 21 11 1998 the mortgaged property was put to sale by the executing court the appellant in civil appeal no 1845 of 2010 was declared the highest bidder he deposited 25 of the bid amount on 11 02 1999 itself on the day on which the sale was conducted the auction purchaser offered rs 4 50 000 and his bid was accepted by the executing court after the bid of the auction purchaser was accepted the judgment debtors filed i a no 03 of 1999 on 19 02 1999 in the execution petition under section 151 c p c before the learned additional city civil judge executing court to stay further proceedings with regard to sale of the subject mortgaged property on 22 02 1999 the judgment debtors filed another i a no 04 of 1999 in the execution petition under order xxi read with rule 90 and order xxi read with rule 47 and section 151 cpc to set aside the court auction sale dated 11 02 1999 and 18 02 1999 with respect to the subject mortgaged property by order dated 30 10 1999 the learned executing court dismissed both the aforesaid applications while dismissing i a no 3 of 1999 the 6 learned executing court observed that the earlier order dated 03 03 1998 was a speaking order and the objections raised by the judgment debtors were overruled and the same had attained the finality as the same has not been assailed by the judgment debtor before any competent appellate forum learned executing court also further observed that the executing court cannot go behind the decree so as to decide the question of correctness and validity of the decree when the decree has become final the learned executing court dismissed i a no 04 of 1999 on the ground that the judgment debtors have not deposited the decretal amount of rs 4 50 000 together with interest in terms of order xxi rule 90 and therefore it does not entitle them to any relief for setting aside the sale as per the requirement of order xxi rule 90 that thereafter the sale of the mortgaged property came to be confirmed in favour of the auction purchaser on 17 11 1999 sale certificate was issued by the court in favour of the auction purchaser and the sale was registered with the sub registrar on 23 11 1999 that the judgment debtors thereafter on 24 11 1999 filed civil revision application no 3699 of 1999 before the high court against the order dated 30 10 1999 passed by the learned executing court in 7 i a no 4 of 1999 which was thereafter converted into mfa no 3934 of 2000 the judgment debtors thereafter filed another civil revision application no 3700 of 1999 in the high court against the order dated 30 10 1999 passed by the learned executing court in i a no 3 of 1999 the high court vide its order dated 06 01 2000 dismissed civil revision application no 3700 of 1999 by observing that the issue regarding fraud has attained finality as the order dated 03 03 1998 passed by the learned executing court overruling the objections of the judgment debtor had attainted finality and the same remained unchallenged having realized that the judgment debtors were required to challenge the order dated 03 03 1998 overruling the objections thereafter after a period of two years from date of the order dated 03 03 1998 the judgment debtors filed civil revision application no 3297 of 2000 before the high court thereafter and having realized that non challenging of the judgment and decree dated 01 06 1995 passed by the learned trial court in o s no 3376 of 1995 shall come in their way after a period of five years from the date of passing the judgment and decree dated 01 06 1995 the judgment debtors filed an appeal being rfa no 274 of 2001 in the high court the said appeal was preferred in 8 the year 2001 it is the case on behalf of the plaintiff that before the high court a compromise petition was prepared on 10 06 2004 wherein the judgment debtors agreed to pay rs 6 96 062 in full and final settlement of the decree passed by the learned trial court however at the time of filing of the compromise petition the judgment debtors withdrew from the compromise agreed by them thereafter the aforesaid first appeal proceeded further the high court vide order dated 19 09 2005 called for a finding report from the principal city civil judge and directed him to hold an enquiry as to whether the decree passed in o s no 3376 of 1995 was obtained by fraud the propriety and legality of the said order of calling for a report finding from the learned principal city civil judge shall be dealt with hereinafter at an appropriate stage that the learned principal city civil judge submitted the report dated 06 12 2005 before the high court wherein he recorded the finding that the decree in o s no 3376 of 1995 had been obtained by fraud relying upon the report submitted by the principal city civil judge dated 06 12 2005 and having opined that the decree in o s no 3376 of 1995 was obtained by fraud the high court vide its impugned judgment and order dated 16 09 2006 has allowed the 9 appeals being rfa no 274 of 2001 mfa no 3934 of 2000 and crp no 3297 of 2000 and the operative part of the impugned common judgment and order passed by the high court is as under rfa no 274 2001 is allowed with cost the order and decree passed by the court of xv addl city civil judge bangalore in o s no 3376 1995 dated 1 6 1995 is set aside and suit is remitted to the addl city civil judge bangalore for fresh disposal in accordance with law defendants are permitted to file written statement within sixty days from today before the trial court mfa no 3394 2000 is allowed order dated 30 10 1999 is set aside however it is open to the auction purchaser to make an application before the trial court for refund of the amount deposited by him and reimbursement of the amount spent by him for registration of the sale deed and other expenses incurred by him and trial court shall consider the said application and dispose of the same in accordance with law crp no 3297 2000 is allowed order dated 3 3 98 is set aside 2 2 feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the high court in allowing the appeals and quashing and setting aside the judgment and decree dated 01 06 1995 passed in o s no 3376 of 1995 quashing and setting aside the order dated 30 10 1999 passed by the learned executing court and quashing and setting aside the order dated 03 03 1998 passed by the learned executing court in overruling the 10 objection raised by the judgment debtors the original defendants as well as the successful auction purchaser have preferred the present appeals 3 shri rahul arya learned advocate appearing on behalf of the original plaintiff has vehemently submitted that the high court has committed an error in quashing and setting aside the consent decree and also in quashing and setting aside the orders dated 01 06 1995 and 30 10 1999 it is vehemently submitted that the high court has materially erred in relying upon the report submitted by the learned principal city civil judge that the decree in o s no 3376 of 1995 has been obtained by fraud it is vehemently submitted that as such even the defendants admitted in the proceedings before the principal city civil judge that he had mortgaged the property for rs 1 00 000 under the registered mortgage deed and that he took a further sum of rs 50 000 from shantilal by executing a pro note in his favour it is submitted that he also admitted that the amount was not repaid it is submitted that in fact and as an after thought the defendant came up with a case that he repaid the money however even as observed by the learned principal city civil judge he could not prove the payment 11 it is submitted that the conduct on the part of the defendant that he has come up with a case that the consent decree in o s no 3376 of 1995 was obtained by fraud is dishonest attempt to get out of the consent decree 3 1 it is submitted that in fact the original defendant no 1 had put his signature on the vakalatnama written statement and the compromise deed it is submitted therefore that it is not a case of forged signature it is further submitted that calling the report from the principal city civil judge and directing him to hold an enquiry as to whether the decree was obtained by fraud itself was contrary to the provisions of the cpc and such a procedure is unknown to law it is submitted that as such by referring the matter to the learned principal city civil judge the high court gave ample opportunity to the defendants to fill in the lacuna it is submitted that as such the learned executing court by passing the order dated 03 03 1998 specifically observed that the judgment debtors have failed to prove by leading cogent evidence that the decree was obtained by fraud it is submitted that as such after two years of the order dated 03 03 1998 overruling the objections raised by the 12 judgment debtors a revision was filed belatedly and as an after thought 3 2 it is submitted that as such the first appeal itself before the high court against the consent decree was not maintainable in view of the provisions of section 96 read with order xxiii of the cpc it is submitted that the high court has not properly appreciated and considered the fact that against the consent decree the appeal shall not be maintainable it is submitted that the high court has materially erred in holding that the appeal would be maintainable 3 3 it is further submitted that the high court has failed to appreciate that the judgment debtors original defendants challenged the consent decree dated 01 06 1995 only in the year 2001 it is submitted that in between number of proceedings were initiated before the executing court and the orders were passed by the executing court dated 03 03 1998 30 10 1999 and even the mortgaged property was auctioned and the sale certificate was issued in favour of the auction purchaser in the month of november 1999 itself and the judgment debtors original defendants did not challenge the consent decree on the ground that it was obtained by 13 fraud till 2001 it is submitted therefore that the conduct of the respondents suffers from delay and laches 3 4 it is further submitted that the high court has failed to appreciate that pursuant to the compromise decree execution proceedings were filed sale notice had been issued immovable property was sold sale came to be confirmed in favour of the auction purchaser and the auction purchaser paid the sale consideration in the court and even thereafter the sale certificate was issued and registered before the sub registrar in the year 1999 itself 3 5 it is further submitted by the learned advocate appearing on behalf of the original plaintiff that the judgment debtors failed to deposit the amount of sale consideration before the executing court which was required to be deposited under order xxi rule 90 of the cpc it is submitted that therefore the high court has materially erred in quashing and setting aside not only the consent decree but also the orders dated 01 06 1995 and 30 10 1999 3 6 it is submitted that the learned principal city civil judge erred in believing the plea of the judgment debtors original defendants that as the compromise process and the written statement were in 14 english and he was knowing only the vernacular language he did not know what was there in the written statement and the consent compromise deed it is submitted that the original defendants have signed the mortgage deed which was in english and was also signed by them on each and every page it cannot be construed that the defendants were familiar only with the vernacular language 4 learned counsel appearing on behalf of the auction purchaser appellant in civil appeal no 1845 of 2010 has further submitted that the appeal itself before the high court challenging the consent decree was not maintainable at all in view of the bar contained in order xxiii rule 3 and section 96 3 cpc in support of the above submission he has heavily relied upon the decision of this court in pushpa devi bhagat v rajinder singh 2006 5 scc 566 4 1 it is further submitted by the learned counsel appearing on behalf of the auction purchaser that as such the auction purchaser purchased the property in the execution proceedings after he was declared the highest bidder it is submitted that in the year 1999 itself the auction purchaser deposited the entire amount of sale consideration before the executing court and even a sale certificate was also issued in favour of the auction purchaser it is further 15 submitted that therefore in view of the order xxi rule 92 read with rule 94 once the sale has become absolute and as held by this court in the case of chinnammal v p arumugham 1990 1 scc 513 subsequent reversal of the decree shall not affect the auction purchaser who is not a party to the decree it is submitted that as held by this court in the aforesaid decision the property bona fidely purchased ignorant of litigation should be protected it is submitted that despite the fact that in the year 1999 the auction purchaser deposited the entire amount because of the subsequent initiation of proceedings by the judgment debtors the auction purchaser is not in a position to enjoy the property which the auction purchaser has purchased on payment of full sale consideration purchased in an auction in the execution proceedings 4 2 it is further submitted that the high court has failed to consider the conduct on the part of the judgment debtors original defendants it is submitted that even before the high court a compromise petition was prepared wherein the judgment debtors original defendants agreed to pay rs 6 96 062 in full and final settlement of the decree passed by the learned trial court however 16 at the time of the compromise petition the respondents withdrew from the compromise agreed by them it is submitted that before the learned principal city civil judge the judgment debtor original defendant admitted the said compromise petition and admitted that he put his signature on the compromise petition voluntarily and with free consent it is submitted that therefore all through out the conduct on the part of the defendants as original debtor is dis honest and to delay the proceedings and deprive the auction purchaser from using the property purchased in the year 1999 5 shri p r ramasesh learned advocate appearing on behalf of the original defendants judgment debtors has supported the impugned judgment and order passed by the high court 5 1 it is vehemently submitted that the learned principal city civil judge in its report which was called for by the high court has specifically observed that the consent decree was obtained by fraud it is submitted that therefore relying upon the report finding by the learned principal city civil judge and when the high court has also come to the conclusion that the consent decree was obtained by fraud the high court has rightly set aside the consent decree and has rightly quashed and set aside the judgment and decree 17 dated 01 06 1995 and order dated 30 10 1999 passed by the executing court and has rightly remanded the matter to the learned trial court to decide the suit on merits 5 2 it is submitted that the high court has rightly held that the first appeal against the consent decree would be maintainable 5 3 it is submitted that the findings recorded by the learned principal city civil judge that the consent decree obtained by fraud is on re appreciation of evidence it is submitted that the high court rightly directed the trial court to hold an enquiry whether the decree was obtained by fraud mis representation it is submitted that once it is observed and held that the consent decree was obtained by fraud mis representation right from the beginning and even prior to the filing of the suit such consent decree is not a decree in the eye of law and therefore the high court has rightly set aside the consent decree and remanded the matter to the trial court to decide the suit on merits it is submitted that therefore all other subsequent orders passed in the executing proceedings would be nullity and therefore the same are rightly set aside by the high court 18 5 4 making the above submissions it is prayed to dismiss the present appeals 6 heard learned counsel appearing on behalf of the parties at length 6 1 at the outset it is required to be noted that by the impugned common judgment and order the high court has allowed the first appeal preferred by the original defendants and has quashed and set aside the consent decree passed by the learned trial court in o s no 3376 of 1995 dated 01 06 1995 much after the mortgaged property came to be sold in the execution proceedings and much after the sale in favour of the auction purchaser was confirmed and the sale certificate was also issued by the impugned judgment and order the high court has also set aside the order dated 30 10 1999 passed by the learned executing court in i a no 4 of 1999 by which the learned executing court dismissed the application preferred by the judgment debtors under order xxi rule 90 read section 47 c p c praying for setting aside the court auction sale by the impugned judgment and order the high court has also allowed the revision application being crp no 3297 of 2000 and has also quashed and set aside the order dated 03 03 1998 19 overruling the objections raised by the judgment debtors more particularly overruling the objection raised by the judgment debtors that the consent decree was obtained by fraud as observed hereinabove both the judgment creditor original plaintiff and the auction purchaser in whose favour the sale deed was confirmed and the sale certificate was issued in his favour as far back as on 17 11 1999 23 11 1999 have preferred the present appeals 7 therefore the short question which is posed for consideration of this court in the present appeals is whether in the facts and circumstances of the case more particularly when the mortgaged property was sold in the court auction in the execution proceedings and the sale was confirmed in favour of the auction purchaser and the sale certificate was issued and sale was confirmed after overruling the objections raised by the judgment debtors more particularly the objection that the consent decree was obtained by fraud and that initially the consent decree was not challenged at all and not only that even order dated 03 03 1998 overruling the objections raised by the judgment debtors was also not challenged at the earliest the high court is justified in quashing and setting 20 aside the consent decree on the ground that the same was obtained by fraud relying upon the report submitted by the principal city civil judge which was called for in the appeal 8 while considering the above said questions as such the conduct inaction on the part of the judgment debtors after the consent decree was passed are required to be considered which are referred to hereinabove and which are again reiterated as under 8 1 that the learned trial court passed the consent decree on 01 06 1995 and decreed that the defendants shall pay to the plaintiff a sum of rs 2 50 000 in a monthly installment of rs 5 000 within three years from that day at the outset it is required to be noted that the execution of the simple mortgage deed execution of the promissory note and taking the amounts of loan have not been disputed by the judgment debtors that after the consent decree was passed on 01 06 1995 the judgment creditor original plaintiff filed an execution petition before the additional city civil judge bangalore being execution petition no 232 of 1996 on 28 02 1996 the judgment debtors entered appearance through an advocate in the execution petition on 21 06 1996 therefore at least it can be said that the judgment 21 debtors were aware of the consent decree at least on 21 06 1996 instead of challenging the said consent decree on the ground that it was obtained by fraud the judgment debtors filed their objections in the execution petition contending that it was obtained by fraud such objections were filed on 04 10 1996 learned executing court by a reasoned order dated 03 03 1998 overruled the objections of the judgment debtors that the decree has been obtained by fraud mis representation etc by specifically observing that after filing of the objections the matter was being posted for hearing but the judgment debtors did not either adduce any evidence in that behalf nor have they addressed any arguments also and therefore in the absence of any proof of the allegation of fraud etc made by the judgment debtors the objections have to be overruled that the judgment debtors did not challenge the order dated 03 03 1998 before the higher forum thereafter after a period of eight months from the passing of the order dated 03 03 1998 the learned executing court issued the sale proclamation of the mortgaged property on 21 11 1998 the spot sale was held on 11 02 1999 the auction purchaser appellant in civil appeal no 1845 of 2010 was declared as the highest bidder 22 he deposited 25 of the bid amount after his bid was accepted being the highest bidder the executing court confirmed the sale bid on 18 02 1999 thereafter judgment debtors filed i a no 03 of 1999 before the executing court for stay of further proceedings in respect of sale of the subject mortgaged property judgment debtors also filed i a no 4 of 1999 under order xxi rule 90 read with rule 47 cpc before the executing court for setting aside court sale in respect of the subject mortgaged property the learned executing court dismissed both the aforesaid applications learned executing court dismissed i a no 3 of 1999 by observing that the order dated 03 03 1998 overruling the objections filed by the judgment debtors has attained the finality as the same has not been assailed before any appellate forum and that the executing court cannot go behind the decree so as to decide the question of correctness and validity of the decree when the decree had become final the learned executing court dismissed i a no 4 of 1999 on the ground that the judgment debtors have not deposited the decretal amount of rs 4 50 000 together with interest in terms of order xxi rule 90 and therefore the judgment debtors are not entitled to seek for setting aside of the 23 sale as per the requirement of order xxi rule 90 that thereafter the learned executing court confirmed the sale in favour of the auction purchaser on 17 11 1999 on 23 11 1999 the sale certificate was issued by the court in favour of the auction purchaser and the sale was registered with the sub registrar that after the sale was confirmed and the sale certificate was issued in favour of the auction purchaser and after the sale was registered with the sub registrar the judgment debtors filed civil revision petition no 3699 of 1999 in the high court of karnataka against the order dismissing i a no 4 of 1999 which was thereafter converted into mfa no 3934 of 2000 thereafter the judgment debtors also filed civil revision petition no 3700 of 1999 in the high court of karnataka at bangalore against the order dated 30 10 1999 passed by the executing court civil revision petition no 3700 of 1999 came to be dismissed by the high court by an order dated 06 01 2000 holding that the issue that the decree was obtained by fraud has attained finality in view of order dated 03 03 1998 rejecting the objections of the judgment debtors remained unchallenged that thereafter after the lapse of around two years the judgment debtors challenged the order dated 24 03 03 1998 by filing crp no 3297 of 2000 at this stage it is required to be noted that till this time judgment debtors did not challenge the decree dated 01 06 1995 before the high court that after a period of five years from the date of passing of the judgment and decree dated 01 06 1995 the judgment debtors preferred rfa no 274 of 2001 challenging the decree dated 01 06 1995 passed by the learned trial court on the ground that the same has been obtained by fraud and mis representation after a period of five years from the date of filing of the appeal the high court called for a finding report from the learned principal city civil judge and directed him to hold an enquiry as to whether the decree dated 01 06 1995 was obtained by fraud the legality and propriety of the said order shall be dealt with hereinbelow at an appropriate stage before the learned principal city civil judge the judgment debtors led the evidence in support of their claim that the judgment and decree was obtained by fraud and mis representation which evidence was not led by them before the executing court when they submitted the objections and contended that the decree was obtained by fraud that thereafter the learned principal city civil judge submitted the report that the decree was obtained by fraud 25 and on the basis of the report submitted by learned principal city civil judge mainly the high court has set aside the judgment and decree by the impugned judgment and order thus from the aforesaid it is crystal clear that all through out there was a delay and negligence on the part of the judgment debtors in not initiating the appropriate proceedings at appropriate stage order dated 03 03 1998 overruling the objections submitted by the judgment debtors to the effect that the judgment was obtained by fraud and mis representation was not challenged by the judgment debtors till the mortgaged property was auctioned sale of the mortgaged property was confirmed in favour of the auction purchaser and even the sale certificate was issued in favour of the auction purchaser and sale was registered with the sub registrar and even also the dismissal of i a no 3 of 1999 and i a no 4 of 1999 not only that till that time even no appeal was assailed challenged before the higher forum the first appeal was filed in the year 2000 and by that time the mortgaged property was already sold in the execution proceedings and the sale was confirmed in favour of the auction purchaser and even the sale certificate was issued in favour of the auction purchaser 26 9 at this stage it is required to be noted that as per the relevant provisions of the code of civil procedure more particularly order xxi rule 92 read with order xxi rule 94 once the sale is confirmed and the sale certificate has been issued in favour of the purchaser the same shall become final 10 now so far as the procedure adopted by the high court calling for the report from the learned principal city civil judge on whether the decree was obtained by fraud or not is concerned at the outset it is required to be noted that at the time when the high court passed such an order there was already an order passed by the learned executing court dated 03 03 1998 overruling the objections raised by the judgment debtors that the decree was obtained by fraud and mis representation as observed by the learned executing court in the order dated 03 03 1998 the judgment debtors except the averments that the decree was obtained by fraud mis representation neither any further submissions were made on that nor even the judgment debtors led any evidence in support of the same therefore as such learned executing court was justified in overruling the objection that the decree was obtained by fraud mis representation etc as per the settled 27 principle of law when the fraud is alleged the same is required to be pleaded and established by leading evidence mere allegation that there was a fraud is not sufficient therefore subsequent order passed by the high court calling for the report from the learned principal city civil judge on the question whether the decree was obtained by fraud or not can be said to be giving an opportunity to the judgment debtors to fill in the lacuna therefore the course adopted by the high court calling for the report from the learned principal city civil judge cannot be approved 10 1 even otherwise it is required to be noted that as per the provisions of order xli the appellate court may permit additional evidence to be produced whether oral or documentary if the conditions mentioned in order xli rule 27 are satisfied after the additional evidence is permitted to be produced in exercise of powers under order xli rule 27 thereafter the procedure under order xli rules 28 and 29 is required to be followed therefore unless and until the procedure under order xli rules 27 28 and 29 are followed the parties to the appeal cannot be permitted to lead additional evidence and or the appellate court is not justified to direct the court from whose decree the appeal is preferred or any 28 other subordinate court to take such evidence and to send it when taken to the appellate court from the material produced on record it appears that the said procedure has not been followed by the high court while calling for the report from the learned principal city civil judge 10 2 even otherwise it is required to be noted that at the time when the learned principal city civil judge permitted the parties to lead the evidence and submitted the report finding that the decree was obtained by fraud there was already an order passed by the executing court co ordinate court overruling the objections made by the judgment debtors that the decree was obtained by fraud therefore unless and until the order dated 03 03 1998 was set aside neither the high court was justified in calling for the report from the learned principal city civil judge nor even the learned principal city civil judge was justified in permitting the judgment debtors to lead the evidence on the allegation that the decree was obtained by fraud mis representation when the judgment debtors failed to lead any evidence earlier before the executing court when such objections were raised 29 11 from the impugned judgment and order passed by the high court it appears that the high court has heavily relied upon the report submitted by the learned principal city civil judge and thereafter has come to the conclusion that the decree was obtained by fraud mis representation therefore in the facts and circumstances of the case and for the reasons stated above the high court has committed an error in relying upon the report submitted by the learned principal city civil judge holding that the decree was obtained by fraud 11 1 even otherwise on perusal of the evidence led before the learned principal city civil judge and even the findings recorded by the learned principal city civil judge and the reasoning given by the high court while holding that the decree was obtained by fraud we are of the opinion that in the facts and circumstances of the case and even on the evidence led the high court has erred in holding that the decree was obtained by fraud the judgment debtors original defendants have put their signatures on the written statement or on the consent terms the mortgaged property and the promissory note are not in dispute therefore when the suit was filed and the judgment debtors wanted to get more time to 30 repay the amount and when it was agreed to pay rs 4 50 000 suit claim in a monthly installment of rs 5 000 within three years nothing was unnatural 12 now so far as the objection raised on behalf of the appellant herein that the appeal before the high court against a consent decree was not maintainable is concerned the same has no substance the high court has elaborately dealt with the same in detail and has considered the relevant provisions of the code of civil procedure namely section 96 order xxiii rule 3 order xliii rule 1 m and order xliii rule 1a 2 it is true that as per section 96 3 the appeal against the decree passed with the consent of the parties shall be barred however it is also true that as per order xxiii rule 3a no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful however it is required to be noted that when order xliii rule 1 m came to be omitted by act 104 of 1976 simultaneously rule xliii rule 1a came to be inserted by the very act 104 of 1976 which provides that in an appeal against the decree passed in a suit for recording a compromise or refusing to record a compromise it shall be open to the appellant to contest the decree on the ground that 31 the compromise should or should not have been recorded therefore the high court has rightly relied upon the decision of this court in banwari lal v chando devi air 1993 sc 1139 para 9 and has rightly come to the conclusion that the appeal before the high court against the judgment and decree passed in o s no 3376 of 1995 was maintainable no error has been committed by the high court in holding so 13 now so far as the dismissal of i a no 4 of 1999 by the learned executing court in the execution petition no 232 of 1996 which was filed by the judgment debtors to set aside the court auction sale dated 11 02 1999 and 18 02 1999 with respect to the subject mortgaged property is concerned it is not in dispute that the judgment debtors as such did not deposit the amount of rs 4 50 000 i e sale consideration together with interest in terms of order xxi rule 90 cpc where any immovable property has been sold in execution of a decree the decree holder or the purchaser or any other person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it 32 therefore as per order xxi rule 90 an application to set aside the sale on the ground of irregularity or fraud may be made by the decree holder on the ground of material irregularity or fraud in publishing or conducting it it is required to be noted that in the present case as such it is not the case of the judgment debtors that there was any material irregularity or fraud in publishing or conducting the sale no such submissions have been made before this court their objection is that the decree was obtained by fraud therefore also the application submitted by the original judgment debtors under order xxi rule 90 i e i a no 4 of 1999 was required to be dismissed and was rightly dismissed by the learned executing court 14 now so far as the impugned judgment and order passed by the high court in crp no 3297 of 2000 quashing and setting aside the order passed by the executing court dated 03 03 1998 is concerned from the impugned judgment and order passed by the high court it appears that the sale has been set aside by the high court in view of the finding on point no 1 i e the decree was obtained by fraud and mis representation and considering the 33 report filed by the learned principal city civil judge however it is required to be noted that at the time when learned executing court passed the order dated 03 03 1998 no evidence was led by the judgment debtors the allegation that the decree was obtained by fraud and mis representation was not substantiated the high court ought to have appreciated that even the order dated 03 03 1998 was not challenged by the judgment debtors till the year 2000 and in the meantime two applications being i a 3 of 1999 and i a no 4 of 1999 were submitted by the judgment debtors under order xxi rule 90 which came to be dismissed and the mortgaged property was sold in the court auction and even the sale was confirmed and the sale certificate was issued and the same was registered with the sub registrar as observed hereinabove as per order xxi rule 92 where an application is made under order xxi rule 89 order xxi rule 90 and order xxi rule 91 and the same is disallowed the court shall make an order confirming the sale and thereafter the sale shall become absolute as per order xxi rule 94 where a sale of immovable property has become absolute the court shall grant a certificate specifying the property 34 sold and the name of the person who at the time of sale is declared to be the purchaser such certificate shall bear the date on which the sale became absolute therefore when after the order dated 03 03 1998 overruling the objections raised by the judgment debtors and thereafter the order was passed in i a no 4 of 1999 and thereafter when the sale was confirmed and the sale certificate was issued the high court ought not to have thereafter set aside the order dated 03 03 1998 overruling the objections raised by the judgment debtors which order was not challenged by the judgment debtors before the high court till the year 2000 under the circumstances the impugned judgment and order passed by the high court in crp no 3297 of 2000 quashing and setting aside the order dated 03 03 1998 cannot be sustained and the same deserves to be quashed and set aside 15 now so far as the impugned judgment and order passed by the high court in mfa no 3934 of 2000 quashing and setting aside the order dated 30 10 1999 dismissing i a no 4 of 1999 which was filed by the judgment debtors under order xxi rule 90 is 35 concerned the high court has set aside the same observing that the auction purchaser cannot be said to be the bona fide purchaser as he was related to the judgment creditor and that he was a partner of the firm in whose favour the mortgage was executed however it is required to be noted that i a no 4 of 1999 was not filed to set aside the sale on the aforesaid grounds the said application was submitted on the ground that no proper publication was made to get the adequate market value therefore the high court has gone beyond the case of the judgment debtors in i a no 4 of 1999 even on merits also and factually the high court is not correct in observing that the auction purchaser was not a bona fide purchaser according to the judgment creditor the partnership firm was already dissolved much before and thereafter the plaintiff inherited the assets claims and liabilities of the firm even as observed by the learned executing court while passing the order in i a no 4 of 1999 the judgment debtors even did not deposit the entire amount under the circumstances the high court therefore committed an error in quashing and setting aside order dated 30 10 1999 passed in i a no 4 of 1999 36 16 in view of the above and for the reasons stated above both these appeals succeed the impugned common judgment and order passed by the high court in rfa no 274 of 2001 mfa no 3934 of 2000 and crp no 3297 of 2000 is hereby quashed and set aside however there shall be no order as to costs j ashok bhushan j r subhash reddy j m r shah new delhi february 12 2021 1 in the supreme court of india civil appellate jurisdiciton civil appeal no 1844 of 2010 h s goutham appellant versus rama murthy and anr etc respondents with civil appeal no 1845 of 2010 h m ravindra kumar appellant versus rama murthy ors respondents j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment and order dated 16 09 2006 passed by the high court of karnataka at bangalore in rfa no 274 of 2001 mfa no 3934 of 2000 and crp no 3297 of 2000 the original plaintiff and the subsequent auction purchaser who purchased the property in 2 question in the court auction in execution proceedings have preferred the present appeals 2 the facts leading to the present appeals in nutshell are as under 2 1 that as per the case of the original plaintiff the respondents herein original defendants hereinafter referred to as the original defendants borrowed a sum of rs 1 00 000 from the father of the appellant herein original plaintiff hereinafter referred to as the original plaintiff in the year 1990 by way of a simple mortgage deed and then further rs 50 000 by way of a promissory note in the year 1992 the deed of simple mortgage was executed on 11 07 1990 the mortgage deed was executed between the original defendants as mortgager and one partnership firm namely c h shantilal co as mortgagee the original plaintiff is the son of shri c h shantilal who was one of the partners of the firm which was dissolved on 17 12 1994 that as per the case of the original plaintiff the mortgager borrowed a loan of rs 1 00 000 from mortgagee in order to clear their earlier debt in lieu of mortgage of property suit property that the mortgager was to repay rs 1 00 000 to the mortgagee within a period of 5 years from the 3 day the deed was entered into along with interest at the rate of 1 5 per mensem or 18 per annum that the interest was required to be paid by the mortgagers to the mortgagee every month on or before the 10th of each month according to the original plaintiff in the event of failure to pay the principal or interest within the period the mortgagee will be entitled to enforce the said mortgage and cause the property or any portion sold and appropriate the proceeds towards the satisfaction of the mortgage deed a promissory note was also executed by the original defendants while taking a further sum of rs 50 000 on 13 12 1992 and created a further charge in the mortgaged property that as the defendants mortgagers did not pay the aforesaid amount the plaintiff filed a suit being o s no 3376 of 1995 on 30 5 1995 before the court of learned city civil judge at bangalore for a sum of rs 2 50 000 together with interest thereon it was also further prayed that on failure of the defendants to pay the decretal amount the plaintiff shall be at liberty to sell the mortgaged property and the sale considerations so realized to be adjusted over the decretal amount according to the plaintiff the defendants filed a written statement on 31 05 1995 and admitted 4 borrowing of rs 1 50 000 according to the plaintiff the defendants were represented by an advocate a compromise settlement was entered into between the plaintiff and the defendants on 01 06 1995 the defendants agreed to pay to the plaintiff a sum of rs 2 50 000 in a monthly installment of rs 5 000 within three years learned trial court accordingly decreed the suit in terms of the compromise vide judgment and decree dated 01 06 1995 that the plaintiff filed an execution petition being execution petition no 232 of 1996 before the court of city civil judge bangalore on 28 02 1996 the judgment debtor defendant entered appearance through an advocate on 21 06 1996 in the execution petition that the judgment debtor defendant filed objections in the execution petition and contended that the decree dated 01 06 1995 was obtained by fraud by order dated 03 03 1998 the executing court overruled the objections of the judgment debtor defendant and specifically observed that the objections of the judgment debtor that the decree has been obtained by fraud mis representation etc are overruled by overruling the objections raised by the judgment debtor learned executing court specifically observed that the judgment debtor has failed to lead any 5 evidence in support of his objections that the decree was obtained by fraud or mis representation that thereafter learned executing court issued sale proclamation of the mortgaged property on 21 11 1998 the mortgaged property was put to sale by the executing court the appellant in civil appeal no 1845 of 2010 was declared the highest bidder he deposited 25 of the bid amount on 11 02 1999 itself on the day on which the sale was conducted the auction purchaser offered rs 4 50 000 and his bid was accepted by the executing court after the bid of the auction purchaser was accepted the judgment debtors filed i a no 03 of 1999 on 19 02 1999 in the execution petition under section 151 c p c before the learned additional city civil judge executing court to stay further proceedings with regard to sale of the subject mortgaged property on 22 02 1999 the judgment debtors filed another i a no 04 of 1999 in the execution petition under order xxi read with rule 90 and order xxi read with rule 47 and section 151 cpc to set aside the court auction sale dated 11 02 1999 and 18 02 1999 with respect to the subject mortgaged property by order dated 30 10 1999 the learned executing court dismissed both the aforesaid applications while dismissing i a no 3 of 1999 the 6 learned executing court observed that the earlier order dated 03 03 1998 was a speaking order and the objections raised by the judgment debtors were overruled and the same had attained the finality as the same has not been assailed by the judgment debtor before any competent appellate forum learned executing court also further observed that the executing court cannot go behind the decree so as to decide the question of correctness and validity of the decree when the decree has become final the learned executing court dismissed i a no 04 of 1999 on the ground that the judgment debtors have not deposited the decretal amount of rs 4 50 000 together with interest in terms of order xxi rule 90 and therefore it does not entitle them to any relief for setting aside the sale as per the requirement of order xxi rule 90 that thereafter the sale of the mortgaged property came to be confirmed in favour of the auction purchaser on 17 11 1999 sale certificate was issued by the court in favour of the auction purchaser and the sale was registered with the sub registrar on 23 11 1999 that the judgment debtors thereafter on 24 11 1999 filed civil revision application no 3699 of 1999 before the high court against the order dated 30 10 1999 passed by the learned executing court in 7 i a no 4 of 1999 which was thereafter converted into mfa no 3934 of 2000 the judgment debtors thereafter filed another civil revision application no 3700 of 1999 in the high court against the order dated 30 10 1999 passed by the learned executing court in i a no 3 of 1999 the high court vide its order dated 06 01 2000 dismissed civil revision application no 3700 of 1999 by observing that the issue regarding fraud has attained finality as the order dated 03 03 1998 passed by the learned executing court overruling the objections of the judgment debtor had attainted finality and the same remained unchallenged having realized that the judgment debtors were required to challenge the order dated 03 03 1998 overruling the objections thereafter after a period of two years from date of the order dated 03 03 1998 the judgment debtors filed civil revision application no 3297 of 2000 before the high court thereafter and having realized that non challenging of the judgment and decree dated 01 06 1995 passed by the learned trial court in o s no 3376 of 1995 shall come in their way after a period of five years from the date of passing the judgment and decree dated 01 06 1995 the judgment debtors filed an appeal being rfa no 274 of 2001 in the high court the said appeal was preferred in 8 the year 2001 it is the case on behalf of the plaintiff that before the high court a compromise petition was prepared on 10 06 2004 wherein the judgment debtors agreed to pay rs 6 96 062 in full and final settlement of the decree passed by the learned trial court however at the time of filing of the compromise petition the judgment debtors withdrew from the compromise agreed by them thereafter the aforesaid first appeal proceeded further the high court vide order dated 19 09 2005 called for a finding report from the principal city civil judge and directed him to hold an enquiry as to whether the decree passed in o s no 3376 of 1995 was obtained by fraud the propriety and legality of the said order of calling for a report finding from the learned principal city civil judge shall be dealt with hereinafter at an appropriate stage that the learned principal city civil judge submitted the report dated 06 12 2005 before the high court wherein he recorded the finding that the decree in o s no 3376 of 1995 had been obtained by fraud relying upon the report submitted by the principal city civil judge dated 06 12 2005 and having opined that the decree in o s no 3376 of 1995 was obtained by fraud the high court vide its impugned judgment and order dated 16 09 2006 has allowed the 9 appeals being rfa no 274 of 2001 mfa no 3934 of 2000 and crp no 3297 of 2000 and the operative part of the impugned common judgment and order passed by the high court is as under rfa no 274 2001 is allowed with cost the order and decree passed by the court of xv addl city civil judge bangalore in o s no 3376 1995 dated 1 6 1995 is set aside and suit is remitted to the addl city civil judge bangalore for fresh disposal in accordance with law defendants are permitted to file written statement within sixty days from today before the trial court mfa no 3394 2000 is allowed order dated 30 10 1999 is set aside however it is open to the auction purchaser to make an application before the trial court for refund of the amount deposited by him and reimbursement of the amount spent by him for registration of the sale deed and other expenses incurred by him and trial court shall consider the said application and dispose of the same in accordance with law crp no 3297 2000 is allowed order dated 3 3 98 is set aside 2 2 feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the high court in allowing the appeals and quashing and setting aside the judgment and decree dated 01 06 1995 passed in o s no 3376 of 1995 quashing and setting aside the order dated 30 10 1999 passed by the learned executing court and quashing and setting aside the order dated 03 03 1998 passed by the learned executing court in overruling the 10 objection raised by the judgment debtors the original defendants as well as the successful auction purchaser have preferred the present appeals 3 shri rahul arya learned advocate appearing on behalf of the original plaintiff has vehemently submitted that the high court has committed an error in quashing and setting aside the consent decree and also in quashing and setting aside the orders dated 01 06 1995 and 30 10 1999 it is vehemently submitted that the high court has materially erred in relying upon the report submitted by the learned principal city civil judge that the decree in o s no 3376 of 1995 has been obtained by fraud it is vehemently submitted that as such even the defendants admitted in the proceedings before the principal city civil judge that he had mortgaged the property for rs 1 00 000 under the registered mortgage deed and that he took a further sum of rs 50 000 from shantilal by executing a pro note in his favour it is submitted that he also admitted that the amount was not repaid it is submitted that in fact and as an after thought the defendant came up with a case that he repaid the money however even as observed by the learned principal city civil judge he could not prove the payment 11 it is submitted that the conduct on the part of the defendant that he has come up with a case that the consent decree in o s no 3376 of 1995 was obtained by fraud is dishonest attempt to get out of the consent decree 3 1 it is submitted that in fact the original defendant no 1 had put his signature on the vakalatnama written statement and the compromise deed it is submitted therefore that it is not a case of forged signature it is further submitted that calling the report from the principal city civil judge and directing him to hold an enquiry as to whether the decree was obtained by fraud itself was contrary to the provisions of the cpc and such a procedure is unknown to law it is submitted that as such by referring the matter to the learned principal city civil judge the high court gave ample opportunity to the defendants to fill in the lacuna it is submitted that as such the learned executing court by passing the order dated 03 03 1998 specifically observed that the judgment debtors have failed to prove by leading cogent evidence that the decree was obtained by fraud it is submitted that as such after two years of the order dated 03 03 1998 overruling the objections raised by the 12 judgment debtors a revision was filed belatedly and as an after thought 3 2 it is submitted that as such the first appeal itself before the high court against the consent decree was not maintainable in view of the provisions of section 96 read with order xxiii of the cpc it is submitted that the high court has not properly appreciated and considered the fact that against the consent decree the appeal shall not be maintainable it is submitted that the high court has materially erred in holding that the appeal would be maintainable 3 3 it is further submitted that the high court has failed to appreciate that the judgment debtors original defendants challenged the consent decree dated 01 06 1995 only in the year 2001 it is submitted that in between number of proceedings were initiated before the executing court and the orders were passed by the executing court dated 03 03 1998 30 10 1999 and even the mortgaged property was auctioned and the sale certificate was issued in favour of the auction purchaser in the month of november 1999 itself and the judgment debtors original defendants did not challenge the consent decree on the ground that it was obtained by 13 fraud till 2001 it is submitted therefore that the conduct of the respondents suffers from delay and laches 3 4 it is further submitted that the high court has failed to appreciate that pursuant to the compromise decree execution proceedings were filed sale notice had been issued immovable property was sold sale came to be confirmed in favour of the auction purchaser and the auction purchaser paid the sale consideration in the court and even thereafter the sale certificate was issued and registered before the sub registrar in the year 1999 itself 3 5 it is further submitted by the learned advocate appearing on behalf of the original plaintiff that the judgment debtors failed to deposit the amount of sale consideration before the executing court which was required to be deposited under order xxi rule 90 of the cpc it is submitted that therefore the high court has materially erred in quashing and setting aside not only the consent decree but also the orders dated 01 06 1995 and 30 10 1999 3 6 it is submitted that the learned principal city civil judge erred in believing the plea of the judgment debtors original defendants that as the compromise process and the written statement were in 14 english and he was knowing only the vernacular language he did not know what was there in the written statement and the consent compromise deed it is submitted that the original defendants have signed the mortgage deed which was in english and was also signed by them on each and every page it cannot be construed that the defendants were familiar only with the vernacular language 4 learned counsel appearing on behalf of the auction purchaser appellant in civil appeal no 1845 of 2010 has further submitted that the appeal itself before the high court challenging the consent decree was not maintainable at all in view of the bar contained in order xxiii rule 3 and section 96 3 cpc in support of the above submission he has heavily relied upon the decision of this court in pushpa devi bhagat v rajinder singh 2006 5 scc 566 4 1 it is further submitted by the learned counsel appearing on behalf of the auction purchaser that as such the auction purchaser purchased the property in the execution proceedings after he was declared the highest bidder it is submitted that in the year 1999 itself the auction purchaser deposited the entire amount of sale consideration before the executing court and even a sale certificate was also issued in favour of the auction purchaser it is further 15 submitted that therefore in view of the order xxi rule 92 read with rule 94 once the sale has become absolute and as held by this court in the case of chinnammal v p arumugham 1990 1 scc 513 subsequent reversal of the decree shall not affect the auction purchaser who is not a party to the decree it is submitted that as held by this court in the aforesaid decision the property bona fidely purchased ignorant of litigation should be protected it is submitted that despite the fact that in the year 1999 the auction purchaser deposited the entire amount because of the subsequent initiation of proceedings by the judgment debtors the auction purchaser is not in a position to enjoy the property which the auction purchaser has purchased on payment of full sale consideration purchased in an auction in the execution proceedings 4 2 it is further submitted that the high court has failed to consider the conduct on the part of the judgment debtors original defendants it is submitted that even before the high court a compromise petition was prepared wherein the judgment debtors original defendants agreed to pay rs 6 96 062 in full and final settlement of the decree passed by the learned trial court however 16 at the time of the compromise petition the respondents withdrew from the compromise agreed by them it is submitted that before the learned principal city civil judge the judgment debtor original defendant admitted the said compromise petition and admitted that he put his signature on the compromise petition voluntarily and with free consent it is submitted that therefore all through out the conduct on the part of the defendants as original debtor is dis honest and to delay the proceedings and deprive the auction purchaser from using the property purchased in the year 1999 5 shri p r ramasesh learned advocate appearing on behalf of the original defendants judgment debtors has supported the impugned judgment and order passed by the high court 5 1 it is vehemently submitted that the learned principal city civil judge in its report which was called for by the high court has specifically observed that the consent decree was obtained by fraud it is submitted that therefore relying upon the report finding by the learned principal city civil judge and when the high court has also come to the conclusion that the consent decree was obtained by fraud the high court has rightly set aside the consent decree and has rightly quashed and set aside the judgment and decree 17 dated 01 06 1995 and order dated 30 10 1999 passed by the executing court and has rightly remanded the matter to the learned trial court to decide the suit on merits 5 2 it is submitted that the high court has rightly held that the first appeal against the consent decree would be maintainable 5 3 it is submitted that the findings recorded by the learned principal city civil judge that the consent decree obtained by fraud is on re appreciation of evidence it is submitted that the high court rightly directed the trial court to hold an enquiry whether the decree was obtained by fraud mis representation it is submitted that once it is observed and held that the consent decree was obtained by fraud mis representation right from the beginning and even prior to the filing of the suit such consent decree is not a decree in the eye of law and therefore the high court has rightly set aside the consent decree and remanded the matter to the trial court to decide the suit on merits it is submitted that therefore all other subsequent orders passed in the executing proceedings would be nullity and therefore the same are rightly set aside by the high court 18 5 4 making the above submissions it is prayed to dismiss the present appeals 6 heard learned counsel appearing on behalf of the parties at length 6 1 at the outset it is required to be noted that by the impugned common judgment and order the high court has allowed the first appeal preferred by the original defendants and has quashed and set aside the consent decree passed by the learned trial court in o s no 3376 of 1995 dated 01 06 1995 much after the mortgaged property came to be sold in the execution proceedings and much after the sale in favour of the auction purchaser was confirmed and the sale certificate was also issued by the impugned judgment and order the high court has also set aside the order dated 30 10 1999 passed by the learned executing court in i a no 4 of 1999 by which the learned executing court dismissed the application preferred by the judgment debtors under order xxi rule 90 read section 47 c p c praying for setting aside the court auction sale by the impugned judgment and order the high court has also allowed the revision application being crp no 3297 of 2000 and has also quashed and set aside the order dated 03 03 1998 19 overruling the objections raised by the judgment debtors more particularly overruling the objection raised by the judgment debtors that the consent decree was obtained by fraud as observed hereinabove both the judgment creditor original plaintiff and the auction purchaser in whose favour the sale deed was confirmed and the sale certificate was issued in his favour as far back as on 17 11 1999 23 11 1999 have preferred the present appeals 7 therefore the short question which is posed for consideration of this court in the present appeals is whether in the facts and circumstances of the case more particularly when the mortgaged property was sold in the court auction in the execution proceedings and the sale was confirmed in favour of the auction purchaser and the sale certificate was issued and sale was confirmed after overruling the objections raised by the judgment debtors more particularly the objection that the consent decree was obtained by fraud and that initially the consent decree was not challenged at all and not only that even order dated 03 03 1998 overruling the objections raised by the judgment debtors was also not challenged at the earliest the high court is justified in quashing and setting 20 aside the consent decree on the ground that the same was obtained by fraud relying upon the report submitted by the principal city civil judge which was called for in the appeal 8 while considering the above said questions as such the conduct inaction on the part of the judgment debtors after the consent decree was passed are required to be considered which are referred to hereinabove and which are again reiterated as under 8 1 that the learned trial court passed the consent decree on 01 06 1995 and decreed that the defendants shall pay to the plaintiff a sum of rs 2 50 000 in a monthly installment of rs 5 000 within three years from that day at the outset it is required to be noted that the execution of the simple mortgage deed execution of the promissory note and taking the amounts of loan have not been disputed by the judgment debtors that after the consent decree was passed on 01 06 1995 the judgment creditor original plaintiff filed an execution petition before the additional city civil judge bangalore being execution petition no 232 of 1996 on 28 02 1996 the judgment debtors entered appearance through an advocate in the execution petition on 21 06 1996 therefore at least it can be said that the judgment 21 debtors were aware of the consent decree at least on 21 06 1996 instead of challenging the said consent decree on the ground that it was obtained by fraud the judgment debtors filed their objections in the execution petition contending that it was obtained by fraud such objections were filed on 04 10 1996 learned executing court by a reasoned order dated 03 03 1998 overruled the objections of the judgment debtors that the decree has been obtained by fraud mis representation etc by specifically observing that after filing of the objections the matter was being posted for hearing but the judgment debtors did not either adduce any evidence in that behalf nor have they addressed any arguments also and therefore in the absence of any proof of the allegation of fraud etc made by the judgment debtors the objections have to be overruled that the judgment debtors did not challenge the order dated 03 03 1998 before the higher forum thereafter after a period of eight months from the passing of the order dated 03 03 1998 the learned executing court issued the sale proclamation of the mortgaged property on 21 11 1998 the spot sale was held on 11 02 1999 the auction purchaser appellant in civil appeal no 1845 of 2010 was declared as the highest bidder 22 he deposited 25 of the bid amount after his bid was accepted being the highest bidder the executing court confirmed the sale bid on 18 02 1999 thereafter judgment debtors filed i a no 03 of 1999 before the executing court for stay of further proceedings in respect of sale of the subject mortgaged property judgment debtors also filed i a no 4 of 1999 under order xxi rule 90 read with rule 47 cpc before the executing court for setting aside court sale in respect of the subject mortgaged property the learned executing court dismissed both the aforesaid applications learned executing court dismissed i a no 3 of 1999 by observing that the order dated 03 03 1998 overruling the objections filed by the judgment debtors has attained the finality as the same has not been assailed before any appellate forum and that the executing court cannot go behind the decree so as to decide the question of correctness and validity of the decree when the decree had become final the learned executing court dismissed i a no 4 of 1999 on the ground that the judgment debtors have not deposited the decretal amount of rs 4 50 000 together with interest in terms of order xxi rule 90 and therefore the judgment debtors are not entitled to seek for setting aside of the 23 sale as per the requirement of order xxi rule 90 that thereafter the learned executing court confirmed the sale in favour of the auction purchaser on 17 11 1999 on 23 11 1999 the sale certificate was issued by the court in favour of the auction purchaser and the sale was registered with the sub registrar that after the sale was confirmed and the sale certificate was issued in favour of the auction purchaser and after the sale was registered with the sub registrar the judgment debtors filed civil revision petition no 3699 of 1999 in the high court of karnataka against the order dismissing i a no 4 of 1999 which was thereafter converted into mfa no 3934 of 2000 thereafter the judgment debtors also filed civil revision petition no 3700 of 1999 in the high court of karnataka at bangalore against the order dated 30 10 1999 passed by the executing court civil revision petition no 3700 of 1999 came to be dismissed by the high court by an order dated 06 01 2000 holding that the issue that the decree was obtained by fraud has attained finality in view of order dated 03 03 1998 rejecting the objections of the judgment debtors remained unchallenged that thereafter after the lapse of around two years the judgment debtors challenged the order dated 24 03 03 1998 by filing crp no 3297 of 2000 at this stage it is required to be noted that till this time judgment debtors did not challenge the decree dated 01 06 1995 before the high court that after a period of five years from the date of passing of the judgment and decree dated 01 06 1995 the judgment debtors preferred rfa no 274 of 2001 challenging the decree dated 01 06 1995 passed by the learned trial court on the ground that the same has been obtained by fraud and mis representation after a period of five years from the date of filing of the appeal the high court called for a finding report from the learned principal city civil judge and directed him to hold an enquiry as to whether the decree dated 01 06 1995 was obtained by fraud the legality and propriety of the said order shall be dealt with hereinbelow at an appropriate stage before the learned principal city civil judge the judgment debtors led the evidence in support of their claim that the judgment and decree was obtained by fraud and mis representation which evidence was not led by them before the executing court when they submitted the objections and contended that the decree was obtained by fraud that thereafter the learned principal city civil judge submitted the report that the decree was obtained by fraud 25 and on the basis of the report submitted by learned principal city civil judge mainly the high court has set aside the judgment and decree by the impugned judgment and order thus from the aforesaid it is crystal clear that all through out there was a delay and negligence on the part of the judgment debtors in not initiating the appropriate proceedings at appropriate stage order dated 03 03 1998 overruling the objections submitted by the judgment debtors to the effect that the judgment was obtained by fraud and mis representation was not challenged by the judgment debtors till the mortgaged property was auctioned sale of the mortgaged property was confirmed in favour of the auction purchaser and even the sale certificate was issued in favour of the auction purchaser and sale was registered with the sub registrar and even also the dismissal of i a no 3 of 1999 and i a no 4 of 1999 not only that till that time even no appeal was assailed challenged before the higher forum the first appeal was filed in the year 2000 and by that time the mortgaged property was already sold in the execution proceedings and the sale was confirmed in favour of the auction purchaser and even the sale certificate was issued in favour of the auction purchaser 26 9 at this stage it is required to be noted that as per the relevant provisions of the code of civil procedure more particularly order xxi rule 92 read with order xxi rule 94 once the sale is confirmed and the sale certificate has been issued in favour of the purchaser the same shall become final 10 now so far as the procedure adopted by the high court calling for the report from the learned principal city civil judge on whether the decree was obtained by fraud or not is concerned at the outset it is required to be noted that at the time when the high court passed such an order there was already an order passed by the learned executing court dated 03 03 1998 overruling the objections raised by the judgment debtors that the decree was obtained by fraud and mis representation as observed by the learned executing court in the order dated 03 03 1998 the judgment debtors except the averments that the decree was obtained by fraud mis representation neither any further submissions were made on that nor even the judgment debtors led any evidence in support of the same therefore as such learned executing court was justified in overruling the objection that the decree was obtained by fraud mis representation etc as per the settled 27 principle of law when the fraud is alleged the same is required to be pleaded and established by leading evidence mere allegation that there was a fraud is not sufficient therefore subsequent order passed by the high court calling for the report from the learned principal city civil judge on the question whether the decree was obtained by fraud or not can be said to be giving an opportunity to the judgment debtors to fill in the lacuna therefore the course adopted by the high court calling for the report from the learned principal city civil judge cannot be approved 10 1 even otherwise it is required to be noted that as per the provisions of order xli the appellate court may permit additional evidence to be produced whether oral or documentary if the conditions mentioned in order xli rule 27 are satisfied after the additional evidence is permitted to be produced in exercise of powers under order xli rule 27 thereafter the procedure under order xli rules 28 and 29 is required to be followed therefore unless and until the procedure under order xli rules 27 28 and 29 are followed the parties to the appeal cannot be permitted to lead additional evidence and or the appellate court is not justified to direct the court from whose decree the appeal is preferred or any 28 other subordinate court to take such evidence and to send it when taken to the appellate court from the material produced on record it appears that the said procedure has not been followed by the high court while calling for the report from the learned principal city civil judge 10 2 even otherwise it is required to be noted that at the time when the learned principal city civil judge permitted the parties to lead the evidence and submitted the report finding that the decree was obtained by fraud there was already an order passed by the executing court co ordinate court overruling the objections made by the judgment debtors that the decree was obtained by fraud therefore unless and until the order dated 03 03 1998 was set aside neither the high court was justified in calling for the report from the learned principal city civil judge nor even the learned principal city civil judge was justified in permitting the judgment debtors to lead the evidence on the allegation that the decree was obtained by fraud mis representation when the judgment debtors failed to lead any evidence earlier before the executing court when such objections were raised 29 11 from the impugned judgment and order passed by the high court it appears that the high court has heavily relied upon the report submitted by the learned principal city civil judge and thereafter has come to the conclusion that the decree was obtained by fraud mis representation therefore in the facts and circumstances of the case and for the reasons stated above the high court has committed an error in relying upon the report submitted by the learned principal city civil judge holding that the decree was obtained by fraud 11 1 even otherwise on perusal of the evidence led before the learned principal city civil judge and even the findings recorded by the learned principal city civil judge and the reasoning given by the high court while holding that the decree was obtained by fraud we are of the opinion that in the facts and circumstances of the case and even on the evidence led the high court has erred in holding that the decree was obtained by fraud the judgment debtors original defendants have put their signatures on the written statement or on the consent terms the mortgaged property and the promissory note are not in dispute therefore when the suit was filed and the judgment debtors wanted to get more time to 30 repay the amount and when it was agreed to pay rs 4 50 000 suit claim in a monthly installment of rs 5 000 within three years nothing was unnatural 12 now so far as the objection raised on behalf of the appellant herein that the appeal before the high court against a consent decree was not maintainable is concerned the same has no substance the high court has elaborately dealt with the same in detail and has considered the relevant provisions of the code of civil procedure namely section 96 order xxiii rule 3 order xliii rule 1 m and order xliii rule 1a 2 it is true that as per section 96 3 the appeal against the decree passed with the consent of the parties shall be barred however it is also true that as per order xxiii rule 3a no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful however it is required to be noted that when order xliii rule 1 m came to be omitted by act 104 of 1976 simultaneously rule xliii rule 1a came to be inserted by the very act 104 of 1976 which provides that in an appeal against the decree passed in a suit for recording a compromise or refusing to record a compromise it shall be open to the appellant to contest the decree on the ground that 31 the compromise should or should not have been recorded therefore the high court has rightly relied upon the decision of this court in banwari lal v chando devi air 1993 sc 1139 para 9 and has rightly come to the conclusion that the appeal before the high court against the judgment and decree passed in o s no 3376 of 1995 was maintainable no error has been committed by the high court in holding so 13 now so far as the dismissal of i a no 4 of 1999 by the learned executing court in the execution petition no 232 of 1996 which was filed by the judgment debtors to set aside the court auction sale dated 11 02 1999 and 18 02 1999 with respect to the subject mortgaged property is concerned it is not in dispute that the judgment debtors as such did not deposit the amount of rs 4 50 000 i e sale consideration together with interest in terms of order xxi rule 90 cpc where any immovable property has been sold in execution of a decree the decree holder or the purchaser or any other person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it 32 therefore as per order xxi rule 90 an application to set aside the sale on the ground of irregularity or fraud may be made by the decree holder on the ground of material irregularity or fraud in publishing or conducting it it is required to be noted that in the present case as such it is not the case of the judgment debtors that there was any material irregularity or fraud in publishing or conducting the sale no such submissions have been made before this court their objection is that the decree was obtained by fraud therefore also the application submitted by the original judgment debtors under order xxi rule 90 i e i a no 4 of 1999 was required to be dismissed and was rightly dismissed by the learned executing court 14 now so far as the impugned judgment and order passed by the high court in crp no 3297 of 2000 quashing and setting aside the order passed by the executing court dated 03 03 1998 is concerned from the impugned judgment and order passed by the high court it appears that the sale has been set aside by the high court in view of the finding on point no 1 i e the decree was obtained by fraud and mis representation and considering the 33 report filed by the learned principal city civil judge however it is required to be noted that at the time when learned executing court passed the order dated 03 03 1998 no evidence was led by the judgment debtors the allegation that the decree was obtained by fraud and mis representation was not substantiated the high court ought to have appreciated that even the order dated 03 03 1998 was not challenged by the judgment debtors till the year 2000 and in the meantime two applications being i a 3 of 1999 and i a no 4 of 1999 were submitted by the judgment debtors under order xxi rule 90 which came to be dismissed and the mortgaged property was sold in the court auction and even the sale was confirmed and the sale certificate was issued and the same was registered with the sub registrar as observed hereinabove as per order xxi rule 92 where an application is made under order xxi rule 89 order xxi rule 90 and order xxi rule 91 and the same is disallowed the court shall make an order confirming the sale and thereafter the sale shall become absolute as per order xxi rule 94 where a sale of immovable property has become absolute the court shall grant a certificate specifying the property 34 sold and the name of the person who at the time of sale is declared to be the purchaser such certificate shall bear the date on which the sale became absolute therefore when after the order dated 03 03 1998 overruling the objections raised by the judgment debtors and thereafter the order was passed in i a no 4 of 1999 and thereafter when the sale was confirmed and the sale certificate was issued the high court ought not to have thereafter set aside the order dated 03 03 1998 overruling the objections raised by the judgment debtors which order was not challenged by the judgment debtors before the high court till the year 2000 under the circumstances the impugned judgment and order passed by the high court in crp no 3297 of 2000 quashing and setting aside the order dated 03 03 1998 cannot be sustained and the same deserves to be quashed and set aside 15 now so far as the impugned judgment and order passed by the high court in mfa no 3934 of 2000 quashing and setting aside the order dated 30 10 1999 dismissing i a no 4 of 1999 which was filed by the judgment debtors under order xxi rule 90 is 35 concerned the high court has set aside the same observing that the auction purchaser cannot be said to be the bona fide purchaser as he was related to the judgment creditor and that he was a partner of the firm in whose favour the mortgage was executed however it is required to be noted that i a no 4 of 1999 was not filed to set aside the sale on the aforesaid grounds the said application was submitted on the ground that no proper publication was made to get the adequate market value therefore the high court has gone beyond the case of the judgment debtors in i a no 4 of 1999 even on merits also and factually the high court is not correct in observing that the auction purchaser was not a bona fide purchaser according to the judgment creditor the partnership firm was already dissolved much before and thereafter the plaintiff inherited the assets claims and liabilities of the firm even as observed by the learned executing court while passing the order in i a no 4 of 1999 the judgment debtors even did not deposit the entire amount under the circumstances the high court therefore committed an error in quashing and setting aside order dated 30 10 1999 passed in i a no 4 of 1999 36 16 in view of the above and for the reasons stated above both these appeals succeed the impugned common judgment and order passed by the high court in rfa no 274 of 2001 mfa no 3934 of 2000 and crp no 3297 of 2000 is hereby quashed and set aside however there shall be no order as to costs j ashok bhushan j r subhash reddy j m r shah new delhi february 12 2021 1775 2021_c a no 001155 001155 2021 the high court the high court the high court meerpur gurudwara kala amb 2025 10 29 1961 sc 372 1968 sc 49 2020 sc 2819 corpn v registrar seb v union co v state reportable in the supreme court of india civil appellate jurisdiction civil appeal no 1155 of 2021 arising out of slp c no 1688 of 2021 m s radha krishan industries appellant versus state of himachal pradesh ors respondents j u d g m e n t dr dhananjaya y chandrachud j a factual background b submissions b 1 maintainability of the writ petition before the high court b 2 challenge on merits improper invocation of section 83 c legal position c 1 maintainability of writ petition before the high court c 2 provisional attachment c 3 delegation of authority under cgst act d analysis e summary of findings 1 part a a factual background 1 this appeal raises significant issues of public importance engaging as it does the interface between citizens and their businesses with the fiscal administration legislation enacted for the levy of goods and services tax confers a power on the taxation authorities to impose a provisional attachment on the properties of the assessee including bank accounts the legislation in himachal pradesh which comes up for interpretation in the present case has conferred the power on the commissioner to order provisional attachment of the property of the assessee subject to the formation of an opinion that such attachment is necessary in the interest of protecting the government revenue what specifically is the ambit of this power what are the safeguards available to the citizen in interpreting the law the court has to chart a course which will ensure a fair exercise of statutory powers the legitimate concerns of citizens over arbitrary exercises of power have to be protected while ensuring that the legislative purpose in entrusting the authority to order a provisional attachment is fulfilled the rule of law in a constitutional framework is fulfilled when law is substantively fair procedurally fair and applied in a fair manner each of these three components will need to be addressed in the course of interpreting the tax statute in the present case 2 this appeal arises from a judgment and order dated 1 january 2021 of a division bench of the high court of himachal pradesh the high court dismissed the writ petition instituted under article 226 of the constitution challenging orders of provisional attachment on the ground that an alternate remedy is available 2 part a the appellant challenged the orders issued on 28 october 2020 by the joint 1 commissioner of state taxes and excise parwanoo provisionally attaching the appellant s receivables from its customers the provisional attachment was ordered while invoking section 83 of the himachal pradesh goods and service 2 tax act 2017 and rule 159 of himachal pradesh goods and service tax 3 rules 2017 while dismissing the writ petition on grounds of maintainability the high court was of the view that the appellant had an alternative and efficacious remedy of an appeal under section 107 of the hpgst act 3 at issue in this case is whether the orders of provisional attachment issued by the third respondent against the appellant on 28 october 2020 are in consonance with the conditions stipulated in section 83 of the hpgst act the answer to this will require the court to embark on an interpretative journey of unravelling the substantive and procedural content of the power the preliminary issue is whether the high court was right in concluding that the provisional attachment could not be challenged in a petition under article 226 4 the facts in the context of which this case arises are thus the appellant manufactures lead according to the specific requirements of its clients and has a factory at village meerpur gurudwara kala amb in the district of sirmaur of himachal pradesh the appellant has been in the same line of business since 4 2008 upon the introduction of the goods and services tax the appellant 1 third respondent 2 hpgst act 3 hpgst rules 4 gst 3 part a migrated to and was registered under gst gstin no o2aakfr7402h2ze with effect from 1 july 2017 5 5 on 3 october 2018 a notice was issued to the appellant under section 6 74 of the hpgst act and the central goods and services tax act by the third respondent requiring it to appear on 9 october 2018 and produce i invoices pertaining to inward and outward supplies for the years 2017 18 and 2018 19 ii party wise summary ledger of inward supplies iii proof of payment of gst with a commodity wise breakup and iv copies of gstr 1 gstr 2 and gstr 3 returns from july 2017 to july 2018 the appellant appeared before the third respondent and submitted original tax invoices pertaining to inward and outward supplies for 2017 18 and 2018 19 by a letter dated 15 october 2018 6 on 10 october 2018 a detection case was registered against gm 7 powertech kala amb one of the suppliers of the appellant under section 74 of the hpgst act and the cgst act read with section 20 of the integrated goods 8 and services tax act 2017 this was through a search and seizure under section 67 of the hpgst act and cgst act the partners of gm powertech were arrested on 3 december 2018 on the ground of raising fraudulent claims of input tax credit 9 from fake fictitious firms in delhi and kanpur 7 the appellant received a memo by an e mail dated 15 december 2018 from the third respondent directing it to be present on 17 december 2018 for 5 the respondents before this court have stated that the said document was in fact a memo under section 70 of hpgst act and not a show cause notice and it was inadvertently mentioned that it was a notice issued under section 74 of the hpgst act 6 cgst act 7 gm powertech 8 igst act 9 itc 4 part a explaining the allegedly illegal claim of itc made during 2017 18 and 2018 19 by its letter dated 17 december 2018 the appellant contended that it had validly claimed itc as it fulfilled the conditions under section 16 and other provisions of the hpgst act and the cgst act 10 8 on 9 january 2019 a notice was issued to fujikawa power bagbania bbn baddi one of the customers of the appellant for provisionally attaching an amount of rs 5 crores due to the appellant under section 83 of the hpgst act on 19 january 2019 the third respondent passed an order of provisional attachment in respect of receivables worth rs 5 crores due from fujikawa power this order inadvertently referred to sarika industries instead of the appellant the appellant responded by a representation dated 29 january 2019 claiming inter alia that the order of attachment was without affording a hearing the appellant also claimed that on 26 december 2018 they had noticed that the itc had been blocked without prior notice on 30 january 2019 the notice of attachment was withdrawn by the third respondent 9 according to the respondents after the case of gm powertech was investigated tax evasion was detected gm powertech was found to have claimed and utilized itc against invoices issued by fake fictitious firms without actual movement of goods gm powertech had issued invoices to various recipients in himachal pradesh including the appellant on 4 july 2020 the third respondent issued an intimation to the appellant under section 74 5 of the 11 hpgst act of tax ascertained as being payable advising it to pay tax interest 10 scn 11 form gst drc 01a 5 part a and penalty of rs 5 03 crores the appellant was given an opportunity to file its submissions against the ascertainment of the amount by 4 august 2020 10 a tax liability of rs 39 48 crores was confirmed against gm powertech on the conclusion of the proceedings against it gm powertech was found to have no business establishment or property in himachal pradesh and the case was considered to fall into the category of a serious tax fraud 11 on 21 october 2020 the commissioner of state taxes and excise 12 himachal pradesh delegated his powers under section 83 of the hpgst act to the third respondent in exercise of the powers delegated by the commissioner 13 the third respondent issued two orders of provisional attachment dated 28 october 2020 attaching the receivables of the appellant from its customers fujikawa power and m s deepak international the attachment order issued to fujikawa power under rule 159 1 of the hpgst rules noted that it owed about rs 4 crores to the appellant the order states that the appellant was found to be involved in an itc fraud amounting to rs 5 03 82 554 rs 5 03 crores during 2017 18 and 2018 19 the order in its relevant part provides in order to protect the interests of revenue and in exercise of the powers conferred delegated by commissioner of the state taxes excise hp vide office order no 12 4 78 exn tax part 278 22 a 26780 82 dated 21 10 2020 under section 83 of the act i u s rana joint commissioner of state taxes excise south enforcement zone parwanoo hereby provisionally attach the payment to the extent of rs 5 03 82 554 of m s radha krishan industries kala amb henceforth no payment shall be allowed to be made from your company to m s radhakrishan industries without the prior permission of this department office 12 second respondent commissioner 13 drc 22 vide memo no exn jcste sezparwanoo 2020 21 1171 and exn jcste sez parwanoo 2020 21 1167 orders of provisional attachment 6 part a a similar order was issued to deepak international noting that a payment of rs 2 91 crores was owed by it to the appellant 12 on 4 november 2020 the appellant filed a representation and objections against the attachment and denied liability by an order dated 6 november 2020 the third respondent rejected the objections of the appellant the third respondent stated that collectively payments only worth rs 4 92 crores from both of the appellant s customers were attached 13 on 27 november 2020 the third respondent issued a notice to show cause to the appellant under section 74 1 of the hpgst act for recovering the itc interest and penalty the notice was issued on the basis that the appellant had claimed itc on the supplies received from gm powertech and since the inward supplies made by gm powertech were found to be fake the appellant s claim of itc was also in question 14 the orders of provisional attachment and the order passed by the commissioner on 21 october 2020 delegating his powers under section 83 of the hpgst act to the third respondent were challenged by the appellant before the 14 high court in a writ petition under article 226 15 while dismissing the writ petition the high court held that it was undisputed that the third respondent and the divisional commissioner who has been appointed as commissioner appeals under the gst act are constituted under the hpgst act and therefore it is assumed that there is no illegal or irregular exercise of jurisdiction the high court further observed that even if 14 writ petition no 5648 of 2020 7 part a there is some defect in the procedure followed during the hearing of the case it does not follow that the authority acted without jurisdiction and though the order may be irregular or defective it cannot be a nullity so long it has been passed by the competent authority 16 the high court held that a writ is ordinarily not maintainable when there exists an alternative remedy the exceptions to this rule are where the statutory authority has not acted in accordance with the provisions of the legislation or acted in defiance of the fundamental principles of judicial procedure or where an order has been passed in violation of the principles of natural justice the high court held that it would not entertain a petition under article 226 of the constitution if an efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken contains a mechanism for redressal of grievances the high court held that when a statutory forum of appeal exists an appeal should not be entertained ignoring the statutory dispensation 17 noting that the appellant has an alternative and efficacious remedy of appeal under section 107 of the hpgst act the high court refused to entertain the writ petition the high court held that it was fortified in this view by the fact that the writ petition filed by gm powertech has also not been entertained and that it has been relegated to avail of the alternative remedy 18 subsequent to the dismissal of the writ petition by the high court certain developments have taken place on 12 january 2021 the appellant sought to 8 part b inspect the files for gm powertech and stated that no documents in this regard had been provided to it in context of the proceedings initiated under section 74 in response the third respondent allowed the appellant to inspect the contents of the appellant s case file according to the respondent the appellant failed to exercise this option and did not reply to the show cause notice dated 27 november 2020 thereafter on 18 february 2021 an order under section 74 9 of the hpgst act was passed by the third respondent confirming a tax demand of rs 8 30 27 218 this order under section 74 9 has been assailed by the appellant before the appellate authority under section 107 the dismissal of the petition challenging the orders of provisional attachment is in question in the present proceedings b submissions 19 mr puneet bali learned senior counsel appearing on behalf of the appellant addressed the following submissions b 1 maintainability of the writ petition before the high court i no efficacious alternative remedy is available against the orders of provisional attachment passed under section 83 of the hpgst act the jurisdiction to pass an order under section 83 is conferred on the commissioner of state taxes although the power stands delegated to the third respondent the order is still deemed to be passed by the commissioner second respondent under the gst act an appeal against the order of the commissioner lies before the gst appellate 9 part b tribunal which has not been constituted till date thus the only remedy available to the appellant was by filing a writ petition ii reliance was placed on whirlpool corporation v registrar of 15 trademarks mumbai to argue that an alternative remedy is not a bar to the exercise of the writ jurisdiction of the high court if the writ petition is filed for enforcement of fundamental rights where there has been a violation of the principles of natural justice where the order or the proceedings are wholly without jurisdiction or when the vires of an act is challenged iii the third respondent had withdrawn the earlier orders of provisional attachment issued in january 2019 after considering the representation filed by the appellant the impugned orders of provisional attachment were issued on 28 october 2020 on the same set of facts and allegations thus the impugned orders of provisional attachment amount to a review of the earlier orders by the same respondent which is contrary to the hpgst act as it does not provide for powers of review iv the impugned orders of provisional attachment are in violation of the procedure established under sub rule 5 of rule 159 of hpgst rules which provides that an opportunity of being heard is to be given against the provisional attachment as a mandatory requirement in this case the appellant filed objections to the orders of provisional attachment on 4 november 2020 and the objections were rejected by the third respondent 15 1998 8 scc 1 10 part b on 6 november 2020 without providing an opportunity of being heard to the appellant v the reliance placed by the high court on the judgment in the case of gm 16 powertech and others v state of h p to state that a similar petition was not entertained is misplaced in that case gm powertech had challenged the order of assessment in the writ petition while the appellant has challenged the orders of provisional attachment made prior to the assessment additionally the case of gm powertech did not fall within the exceptions to the rule of alternate remedy vi the high courts should not have dismissed the writ petition on grounds of maintainability if the facts of the case are not disputed by the state as held 17 in rajasthan state electricity board v union of india and vii reliance was placed on calcutta discount co ltd v income tax 18 officer companies district i calcutta and commissioner of income tax gujarat v m s a raman and co 19 to argue that the high court can exercise its powers under article 226 of the constitution to issue an order prohibiting the tax officer from proceedings to assess the liability if the conditions precedent to the exercise of such jurisdiction have not been met b 2 challenge on merits improper invocation of section 83 i the power of provisional attachment under section 83 of the hpgst act is a drastic power and must be exercised with extreme care and caution 16 cwp no 5462 of 2020 17 2008 5 scc 632 18 air 1961 sc 372 19 air 1968 sc 49 11 part b ii the power under section 83 of the hpgst act cannot be exercised unless there is sufficient material on record to justify that the assessee is about to dispose of the whole or part of its property to thwart the ultimate collection of tax iii the existence of relevant material is a pre condition to the formation of an opinion by the commissioner iv the third respondent failed to show any material on record to indicate that the appellant is a fly by night operator or is disposing off assets to defeat the collection of tax v the stated reason for provisional attachment the initiation of proceedings and passing of an order under section 74 against the appellant s supplier gm powertech is insufficient to invoke the powers of provisional attachment against the appellant vi the third respondent has failed to show that there is a threat to the interests of the revenue on account of the appellant s alleged involvement in the said itc fraud of gm powertech vii the appellant has paid an output tax of rs 12 49 90 267 14 rs 12 49 crores for the relevant period which is more than the itc of rs 3 25 crores which the appellant has allegedly taken fraudulently viii even if the revenue has to attach the properties of the assessee immovable properties must be attached attachment of bank accounts and trading assets should be a last resort only as it paralyses the business of the assessee 12 part b ix the pendency of proceedings under sections 62 63 64 67 73 or 74 of the hpgst act is a pre condition for invoking the provisions of section 83 of the hpgst act x the provisional attachment of the appellant s assets was made on 28 october 2020 before the proceedings were initiated against the appellant under section 74 of the hpgst act on 27 november 2020 thus the provisional attachment was made without jurisdiction and in violation of section 83 xi the provisions of section 83 of the hpgst act do not provide for making provisional attachment a second time once the first attachment is withdrawn moreover the hpgst act does not provide the third respondent the power of review to review his earlier decision regarding provisional attachment xii the first provisional attachment against the appellant was withdrawn completely with immediate effect in january 2019 and the same had gained finality thus the impugned orders of provisional attachment for the second time are without the authority of law and should be set aside xiii provisional attachment of 100 of the alleged amount is not permissible as per law xiv while section 83 of the hpgst act does not provide for the percentage of alleged amount to be attached the powers under this section must be guided by other provisions of the act xv under section 74 of the hpgst act once the tax demand becomes payable an assessee can only challenge this demand in appeal after 13 part b depositing 10 of the disputed amount and the remaining demand is stayed in contrast the provisional attachment of 100 of the alleged amount even before the finalisation of the tax demand is contrary to the legislative intent xvi the third respondent has taken a contradictory stand with respect to collection of tax from the appellant even if it is admitted that the transaction between the appellant and gm powertech was a fake transaction without actual movement of goods it follows that the appellant cannot claim refund of itc and nor would the appellant be liable to pay tax on outward supplies however the appellant has already paid rs 12 49 crores of tax on outward supplies xvii the third respondent has raised a demand of rs 39 crores against gm powertech for illegally availing itc once the tax demand has been confirmed against gm powertech refusal to grant itc to the appellant would amount to double collection of tax 20 opposing these submissions mr akshay amritanshu learned counsel appearing on behalf of the state of himachal pradesh submitted that i the slp should be dismissed as the appellant has an alternate and efficacious remedy of an appeal under section 107 of the hpgst act moreover the slp has been rendered infructuous due to the order dated 18 february 2021 under section 74 9 of the hpgst act and the consequent appeal filed by the appellant against this order before the appellate authority 14 part b ii in paragraph 4 of the impugned judgment it has been noted that the appellant had admitted that it had an alternative remedy by way of an appeal under section 107 of the hpgst act iii the delegation of powers under section 83 of the hpgst act by the second respondent to the third respondent does not imply that there was an irregular or illegal exercise of jurisdiction by the second respondent iv the order under section 74 9 against gm powertech has not been challenged and has gained finality since it has been found that all purchases of gm powertech were fraudulent there could have been no outward sale to the appellant thus the transaction between gm powertech and appellant would also be fraudulent v the orders of provisional attachment were issued after the proceedings against gm powertech had concluded vi gm powertech had no property or business establishment in himachal pradesh in order to avoid a similar situation against the appellant and to protect the interests of revenue the impugned orders of provisional attachment were passed vii the proceedings of provisional attachment under section 83 of the hpgst act had concluded after rejection of the objections filed by the appellant on 6 november 2020 the appellant participated in these proceedings and did not challenge the orders of provisional attachment thus the appellant is estopped from challenging the initiation of proceedings under section 83 of the hpgst act 15 part b viii the impugned orders of provisional attachment were based on a fresh set of allegations after the proceedings against gm powertech had been concluded and it was found that gm powertech had no business or properties in himachal pradesh ix after the appellant filed objections to the orders of provisional attachment it was in the discretion of the commissioner whether or not to grant an opportunity of a hearing to the appellant x merely because the appellant has paid rs 12 crores of tax does not imply that the appellant did not engage in the itc fraud xi there was no violation of the principles of natural justice as an order of provisional attachment does not require a prior notice to be issued to the assessee xii the necessary prerequisites for triggering section 83 of the hpgst act were complied with xiii the appellant had not sought any prior stay on the orders of provisional attachment and thus it is not conceivable that the business of the appellant has become paralyzed due to these orders xiv the provisional attachment is not only for the purpose of recovery but is intended to safeguard the interests of the revenue while the proceedings are pending and xv the legislature did not provide any quantum or percentage for the purpose of provisional attachment under section 83 of the act thus a comparison with other provisions of the hpgst act including section 107 is incorrect 16 part c c legal position 21 the following issues arise in the present case i whether a writ petition challenging the orders of provisional attachment was maintainable under article 226 of the constitution before the high court and ii if the answer to i is in the affirmative whether the orders of provisional attachment constitute a valid exercise of power 22 the appellant has advanced submissions on and adverted to the merits of the proceedings initiated under section 74 of the hpgst act the order dated 18 february 2021 under section 74 9 of the hpgst act is not in challenge before this court an appeal against the order is pending before the appellate authority under section 107 of the hpgst act we will not adjudicate upon the merits of the order under section 74 9 this judgment is confined to the two issues formulated above 23 we shall now review the position of law on the questions before us c 1 maintainability of writ petition before the high court 24 the high court has dealt with the maintainability of the petition under article 226 of the constitution relying on the decision of this court in assistant commissioner ct ltu kakinada and others v glaxo smith kline consumer health care limited 20 the high court noted that although it can entertain a petition under article 226 of the constitution it must not do so when 20 air 2020 sc 2819 17 part c the aggrieved person has an effective alternate remedy available in law however certain exceptions to this rule of alternate remedy include where the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of the fundamental principles of judicial procedure or has resorted to invoke provisions which are repealed or where an order has been passed in violation of the principles of natural justice applying this formulation the high court noted that the appellant has an alternate remedy available under the gst act and thus the petition was not maintainable 25 in this background it becomes necessary for this court to dwell on the rule of alternate remedy and its judicial exposition in whirlpool corporation v 21 registrar of trademarks mumbai a two judge bench of this court after reviewing the case law on this point noted 14 the power to issue prerogative writs under article 226 of the constitution is plenary in nature and is not limited by any other provision of the constitution this power can be exercised by the high court not only for issuing writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari for the enforcement of any of the fundamental rights contained in part iii of the constitution but also for any other purpose 15 under article 226 of the constitution the high court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition but the high court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available the high court would not normally exercise its jurisdiction but the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies namely where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an act is challenged there is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on 21 1998 8 scc 1 whirlpool 18 part c some old decisions of the evolutionary era of the constitutional law as they still hold the field emphasis supplied 26 following the dictum of this court in whirlpool supra in harbanslal 22 sahnia v indian oil corpn ltd this court noted that 7 so far as the view taken by the high court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion in an appropriate case in spite of availability of the alternative remedy the high court may still exercise its writ jurisdiction in at least three contingencies i where the writ petition seeks enforcement of any of the fundamental rights ii where there is failure of principles of natural justice or iii where the orders or proceedings are wholly without jurisdiction or the vires of an act is challenged see whirlpool corpn v registrar of trade marks 1998 8 scc 1 the present case attracts applicability of the first two contingencies moreover as noted the appellants dealership which is their bread and butter came to be terminated for an irrelevant and non existent cause in such circumstances we feel that the appellants should have been allowed relief by the high court itself instead of driving them to the need of initiating arbitration proceedings emphasis supplied 27 the principles of law which emerge are that i the power under article 226 of the constitution to issue writs can be exercised not only for the enforcement of fundamental rights but for any other purpose as well ii the high court has the discretion not to entertain a writ petition one of the restrictions placed on the power of the high court is where an effective alternate remedy is available to the aggrieved person 22 2003 2 scc 107 19 part c iii exceptions to the rule of alternate remedy arise where a the writ petition has been filed for the enforcement of a fundamental right protected by part iii of the constitution b there has been a violation of the principles of natural justice c the order or proceedings are wholly without jurisdiction or d the vires of a legislation is challenged iv an alternate remedy by itself does not divest the high court of its powers under article 226 of the constitution in an appropriate case though ordinarily a writ petition should not be entertained when an efficacious alternate remedy is provided by law v when a right is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability resort must be had to that particular statutory remedy before invoking the discretionary remedy under article 226 of the constitution this rule of exhaustion of statutory remedies is a rule of policy convenience and discretion and vi in cases where there are disputed questions of fact the high court may decide to decline jurisdiction in a writ petition however if the high court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction such a view would not readily be interfered with 20 part c 28 these principles have been consistently upheld by this court in seth chand ratan v pandit durga prasad 23 babubhai muljibhai patel v nandlal khodidas barot 24 and rajasthan seb v union of india 25 among other decisions c 2 provisional attachment 29 at this stage we will advert to relevant precedents outlining the contours of the power of provisional attachment and specifically in the context of provisions worded similarly to section 83 of the hpgst act 30 the decision of this court in raman tech process engg co and anr v 26 solanki traders was concerned with the power of a civil court under order 38 rule 5 of the cpc to order an attachment before judgment in that case proceedings had been instituted by the respondent for the recovery of moneys due for the supply of material to the appellant the plaintiff moved an application under order 38 rule 5 for a direction to the defendants to furnish security for the suit claim and if they failed to do so for attachment before judgment this court described the power of attachment before judgment in the following terms 5 the power under order 38 rule 5 civil procedure code is a drastic and extraordinary power such power should not be exercised mechanically or merely for the asking it should be used sparingly and strictly in accordance with the rule the purpose of order 38 rule 5 not to convert an unsecured debt into a secured debt any attempt by a plaintiff to utilize the provisions of order 38 rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiffs by obtaining orders of 23 2003 5 scc 399 24 1974 2 scc 706 25 2008 5 scc 632 26 2008 1 r c r civil 195 21 part c attachment before judgment and forcing the defendants for out of court settlements under threat of attachment 6 a defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment a plaintiff should show prima facie that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property with the intention of obstructing or delaying the execution of any decree that may be passed against him before power is exercised under order 38 rule 5 cpc courts should also keep in view the principles relating to grant of attachment before judgment internal citation omitted 31 a body of precedent has emerged in the high courts on the exercise of the 27 power under section 83 of the cgst act akin to the state gst act the shared learning which emerges from these decisions of the high court needs 28 recognition in valerius industries v union of india the gujarat high court laid down the principles for the construction of section 83 of the sgst cgst act the high court noted that a provisional attachment on the basis of a subjective satisfaction absent any cogent or credible material constitutes malice in law it further outlined the principles for the exercise of the power 52 the order of provisional attachment before the assessment order is made may be justified if the assessing authority or any other authority empowered in law is of the opinion that it is necessary to protect the interest of revenue however the subjective satisfaction should be based on some credible materials or information it is not any and every material howsoever vague and indefinite or distant remote or far fetching which would warrant the formation of the belief 1 the power conferred upon the authority under section 83 of the act for provisional attachment could be termed as a very 27 sgst act 28 2019 30 gstl 15 gujarat 22 part c drastic and far reaching power such power should be used sparingly and only on substantive weighty grounds and reasons 3 the power of provisional attachment under section 83 of the act should be exercised by the authority only if there is a reasonable apprehension that the assessee may default the ultimate collection of the demand that is likely to be raised on completion of the assessment it should therefore be exercised with extreme care and caution 4 the power under section 83 of the act for provisional attachment should be exercised only if there is sufficient material on record to justify the satisfaction that the assessee is about to dispose of wholly or any part of his her property with a view to thwarting the ultimate collection of demand and in order to achieve the said objective the attachment should be of the properties and to that extent it is required to achieve this objective 5 the power under section 83 of the act should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee 6 the attachment of bank account and trading assets should be resorted to only as a last resort or measure the provisional attachment under section 83 of the act should not be equated with the attachment in the course of the recovery proceedings 7 the authority before exercising power under section 83 of the act for provisional attachment should take into consideration two things i whether it is a revenue neutral situation ii the statement of output liability or input credit having regard to the amount paid by reversing the input tax credit if the interest of the revenue is sufficiently secured then the authority may not be justified in invoking its power under section 83 of the act for the purpose of provisional attachment emphasis supplied 29 32 in the same vein in jai ambey filament pvt ltd v union of india the gujarat high court reiterated that the subjective satisfaction as to the need for 29 2021 44 gstl 41 gujarat 23 part c provisional attachment must be based on credible information that the attachment is necessary this opinion cannot be formed based on imaginary grounds wishful thinking howsoever laudable that may be the high court further held that on his opinion being challenged the competent officer must be able to show the material on the basis of which the belief is formed 33 in patran steel rolling mill v assistant commissioner of state tax 30 unit 2 the gujarat high court cited two instances in which provisional attachment would be apposite these being where the assessee is a fly by night operator and if the assessee will not be able to pay its dues after assessment 34 similar to the decisions of the gujarat high court other high courts have recognized the restrictive nature of the power of provisional attachment under section 83 of the sgst act and the need for it to be based on adequate substantive material the high courts have also underscored the extraordinary 31 nature of this power necessitating due caution in its exercise 35 the delhi high court in proex fashion private limited v government 32 of india outlined the following statutorily stipulated conditions for the invocation of section 83 of the sgst act i order should be passed by commissioner ii proceeding under section 62 or 63 or 64 or 67 or 73 or 74 should be pending 30 2019 20 gstl 732 gujarat 31 bindal smelting private limited v addl director general of gst intelligence 2020 34 g s t l 592 p h society for integrated development of urban and rural areas v commissioner of income tax a p ii hyd 2001 252 itr 642 vinod kumar murlidhar prop of chechani trading co v state of gujarat special civil application no 12498 of 2020 dated 9 december 2020 32 wp c 11245 of 2020 dated 6 january 2021 24 part c iii commissioner must form an opinion iv order should be passed to protect interest of revenue v it must be necessary to attach property 33 36 in ufv india global education v union of india the punjab and haryana high court held that pendency of proceedings under the sections mentioned in section 83 viz sections 62 or 63 or 64 or 67 or 73 or 74 is the sine qua non for an order of provisional attachment to be issued under section 83 37 another case which is relevant for our purposes is the decision of the 34 bombay high court in kaish impex private limited v union of india in this case the taxation authorities were enquiring into fraudulent claiming of itc on the basis of fictitious transactions by an export firm in delhi against whom proceedings under section 67 of the cgst act had been initiated on tracing the money trail the petitioner was summoned under section 70 of the cgst act and his bank accounts were provisionally attached under section 83 of the cgst act on dealing with the question of whether the bank accounts of the petitioner could be attached when there were no pending proceedings against him and proceedings were pending against another taxable entity the high court held that the proceedings referred to under section 83 of the act must be pending against the taxable entity whose property is being attached the high court noted that 18 section 83 though uses the phrase pendency of any proceedings the proceedings are referable to section 62 63 64 67 73 and 74 of the act and none other the bank 33 2020 43 gstl 472 34 2020 6 air bom r 122 25 part c account of the taxable person can be attached against whom the proceedings under the sections mentioned above are initiated section 83 does not provide for an automatic extension to any other taxable person from an inquiry specifically launched against a taxable person under these provisions section 83 read with section 159 2 and the form gst drc 22 show that a proceeding has to be initiated against a specific taxable person an opinion has to be formed that to protect the interest of revenue an order of provisional attachment is necessary the format of the order i e the form gst drc 22 also specifies the particulars of a registered taxable person and which proceedings have been launched against the aforesaid taxable person indicating a nexus between the proceedings to be initiated against a taxable person and provisional attachment of bank account of such taxable person emphasis supplied c 3 delegation of authority under cgst act 38 the learned counsel for the respondent state during the course of his submissions has also sought to justify the delegation of powers by the commissioner to the joint commissioner by way of the impugned notification dated 21 october 2020 for the purpose of attachment of properties under section 83 of the hpgst act in this regard reliance was placed on nathanlal maganlal 35 chauhan v state of gujarat where the gujarat high court was considering the validity of a notification by which the commissioner of state tax had delegated all the functions under the sgst act to the special commissioner and additional commissioners of state tax in rejecting a challenge to this notification the high court held that 39 as pointed out by the supreme court in the case of sahni silk mills internal citation omitted the courts should normally be 35 2020 scc online guj 1811 26 part d rigorous while requiring the power to be exercised by the persons or the bodies authorized by the statutes as noted above it is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else at the same time in the present administrative setup the extreme judicial aversion to delegation should not be carried to an extreme there is only one commissioner of state tax in the state of gujarat and having regard to the enormous functions and duties to be discharged under the new tax regime he has been empowered to delegate his powers to the special commissioner of state tax and the additional commissioners of state tax 40 we take notice of the fact that the delegation has been authorized expressly under section 5 3 of the act we would have definitely interfered if the special commissioner or the additional commissioners would have further delegated the power to officers subordinate to them such is not the case over here 41 in the impugned notification it has been stated that the functions delegated shall be under the overall supervision of the commissioner when the commissioner stated that his functions were delegated subject to his overall supervision it did not mean or should not be construed as if he reserved to himself the right to intervene to impose his own decision upon his delegate the words in the last part of the impugned notification would mean that the commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action in other words the administrative side of the delegate s duties were to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case once the powers are delegated for the purpose of section 69 of the act the subjective satisfaction or rather the reasonable belief should be that of the delegated authority emphasis supplied d analysis 39 the essence of the present case lies in how the power to order a provisional attachment under section 83 of the hpgst act is construed before interpreting it the provision is extracted below for convenience of reference 27 part d 83 provisional attachment to protect revenue in certain cases 1 where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74 the commissioner is of the opinion that for the purpose of protecting the interest of the government revenue it is necessary so to do he may by order in writing attach provisionally any property including bank account belonging to the taxable person in such manner as may be prescribed 2 every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub section 1 40 the marginal note to section 83 provides some indication of parliamentary intent section 83 provides for provisional attachment to protect revenue in certain cases the first point to note is that the attachment is provisional provisional in the sense that it is in aid of something else the second point to note is that the purpose is to protect the revenue the third point is the expression in certain cases which shows that in order to effect a provisional attachment the conditions which have been spelt out in the statute must be fulfilled marginal notes it is well settled do not control a statutory provision but provide some guidance in regard to content put differently a marginal note indicates the drift of the provision with these prefatory comments the judgment must turn to the essential task of statutory construction the language of the statute has to be interpreted bearing in mind that it is a taxing statute which comes up for interpretation the provision must be construed on its plain terms equally in interpreting the statute we must have regard to the purpose underlying the provision an interpretation which effectuates the purpose must be preferred particularly when it is supported by the plain meaning of the words used 28 part d 41 sub section 1 of section 83 can be bifurcated into several parts the first part provides an insight on when in point of time or at which stage the power can be exercised the second part specifies the authority to whom the power to order a provisional attachment is entrusted the third part defines the conditions which must be fulfilled to validate the power or ordering a provisional attachment the fourth part indicates the manner in which an attachment is to be leveled the final and the fifth part defines the nature of the property which can be attached each of these special divisions which have been explained above is for convenience of exposition while they are not watertight compartments ultimately and together they aid in validating an understanding of the statute each of the above five parts is now interpreted and explained below i the power to order a provisional attachment is entrusted during the pendency of proceedings under any one of six specified provisions sections 62 63 64 67 73 or 74 in other words it is when a proceeding under any of these provisions is pending that a provisional attachment can be ordered ii the power to order a provisional attachment has been vested by the legislature in the commissioner iii before exercising the power the commissioner must be of the opinion that for the purpose of protecting the interest of the government revenue it is necessary so to do iv the order for attachment must be in writing v the provisional attachment which is contemplated is of any property including a bank account belonging to the taxable person and 29 part d vi the manner in which a provisional attachment is levied must be specified in the rules made pursuant to the provisions of the statute 42 under sub section 2 of section 83 a provisional attachment ceases to have effect upon the expiry of a period of one year of the order being passed under sub section 1 the power to levy a provisional attachment has been entrusted to the commissioner during the pendency of proceedings under sections 62 63 64 67 73 or as the case may be section 74 section 62 contains provisions for assessment for non filing of returns section 63 provides for assessment of unregistered persons section 64 contains provisions for summary assessment section 67 elucidates provisions for inspection search and seizure before we dwell on section 74 it would be material to note the provisions of section 70 which are extracted below 70 power to summon persons to give evidence and produce documents 1 the proper officer under this act shall have powers to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner as provided in the case of a civil court under the provisions of the code of civil procedure 1908 5 of 1908 2 every such inquiry referred to in sub section 1 shall be deemed to be a judicial proceedings w truncated reportable in the supreme court of india civil appellate jurisdiction civil appeal no 1155 of 2021 arising out of slp c no 1688 of 2021 m s radha krishan industries appellant versus state of himachal pradesh ors respondents j u d g m e n t dr dhananjaya y chandrachud j a factual background b submissions b 1 maintainability of the writ petition before the high court b 2 challenge on merits improper invocation of section 83 c legal position c 1 maintainability of writ petition before the high court c 2 provisional attachment c 3 delegation of authority under cgst act d analysis e summary of findings 1 part a a factual background 1 this appeal raises significant issues of public importance engaging as it does the interface between citizens and their businesses with the fiscal administration legislation enacted for the levy of goods and services tax confers a power on the taxation authorities to impose a provisional attachment on the properties of the assessee including bank accounts the legislation in himachal pradesh which comes up for interpretation in the present case has conferred the power on the commissioner to order provisional attachment of the property of the assessee subject to the formation of an opinion that such attachment is necessary in the interest of protecting the government revenue what specifically is the ambit of this power what are the safeguards available to the citizen in interpreting the law the court has to chart a course which will ensure a fair exercise of statutory powers the legitimate concerns of citizens over arbitrary exercises of power have to be protected while ensuring that the legislative purpose in entrusting the authority to order a provisional attachment is fulfilled the rule of law in a constitutional framework is fulfilled when law is substantively fair procedurally fair and applied in a fair manner each of these three components will need to be addressed in the course of interpreting the tax statute in the present case 2 this appeal arises from a judgment and order dated 1 january 2021 of a division bench of the high court of himachal pradesh the high court dismissed the writ petition instituted under article 226 of the constitution challenging orders of provisional attachment on the ground that an alternate remedy is available 2 part a the appellant challenged the orders issued on 28 october 2020 by the joint 1 commissioner of state taxes and excise parwanoo provisionally attaching the appellant s receivables from its customers the provisional attachment was ordered while invoking section 83 of the himachal pradesh goods and service 2 tax act 2017 and rule 159 of himachal pradesh goods and service tax 3 rules 2017 while dismissing the writ petition on grounds of maintainability the high court was of the view that the appellant had an alternative and efficacious remedy of an appeal under section 107 of the hpgst act 3 at issue in this case is whether the orders of provisional attachment issued by the third respondent against the appellant on 28 october 2020 are in consonance with the conditions stipulated in section 83 of the hpgst act the answer to this will require the court to embark on an interpretative journey of unravelling the substantive and procedural content of the power the preliminary issue is whether the high court was right in concluding that the provisional attachment could not be challenged in a petition under article 226 4 the facts in the context of which this case arises are thus the appellant manufactures lead according to the specific requirements of its clients and has a factory at village meerpur gurudwara kala amb in the district of sirmaur of himachal pradesh the appellant has been in the same line of business since 4 2008 upon the introduction of the goods and services tax the appellant 1 third respondent 2 hpgst act 3 hpgst rules 4 gst 3 part a migrated to and was registered under gst gstin no o2aakfr7402h2ze with effect from 1 july 2017 5 5 on 3 october 2018 a notice was issued to the appellant under section 6 74 of the hpgst act and the central goods and services tax act by the third respondent requiring it to appear on 9 october 2018 and produce i invoices pertaining to inward and outward supplies for the years 2017 18 and 2018 19 ii party wise summary ledger of inward supplies iii proof of payment of gst with a commodity wise breakup and iv copies of gstr 1 gstr 2 and gstr 3 returns from july 2017 to july 2018 the appellant appeared before the third respondent and submitted original tax invoices pertaining to inward and outward supplies for 2017 18 and 2018 19 by a letter dated 15 october 2018 6 on 10 october 2018 a detection case was registered against gm 7 powertech kala amb one of the suppliers of the appellant under section 74 of the hpgst act and the cgst act read with section 20 of the integrated goods 8 and services tax act 2017 this was through a search and seizure under section 67 of the hpgst act and cgst act the partners of gm powertech were arrested on 3 december 2018 on the ground of raising fraudulent claims of input tax credit 9 from fake fictitious firms in delhi and kanpur 7 the appellant received a memo by an e mail dated 15 december 2018 from the third respondent directing it to be present on 17 december 2018 for 5 the respondents before this court have stated that the said document was in fact a memo under section 70 of hpgst act and not a show cause notice and it was inadvertently mentioned that it was a notice issued under section 74 of the hpgst act 6 cgst act 7 gm powertech 8 igst act 9 itc 4 part a explaining the allegedly illegal claim of itc made during 2017 18 and 2018 19 by its letter dated 17 december 2018 the appellant contended that it had validly claimed itc as it fulfilled the conditions under section 16 and other provisions of the hpgst act and the cgst act 10 8 on 9 january 2019 a notice was issued to fujikawa power bagbania bbn baddi one of the customers of the appellant for provisionally attaching an amount of rs 5 crores due to the appellant under section 83 of the hpgst act on 19 january 2019 the third respondent passed an order of provisional attachment in respect of receivables worth rs 5 crores due from fujikawa power this order inadvertently referred to sarika industries instead of the appellant the appellant responded by a representation dated 29 january 2019 claiming inter alia that the order of attachment was without affording a hearing the appellant also claimed that on 26 december 2018 they had noticed that the itc had been blocked without prior notice on 30 january 2019 the notice of attachment was withdrawn by the third respondent 9 according to the respondents after the case of gm powertech was investigated tax evasion was detected gm powertech was found to have claimed and utilized itc against invoices issued by fake fictitious firms without actual movement of goods gm powertech had issued invoices to various recipients in himachal pradesh including the appellant on 4 july 2020 the third respondent issued an intimation to the appellant under section 74 5 of the 11 hpgst act of tax ascertained as being payable advising it to pay tax interest 10 scn 11 form gst drc 01a 5 part a and penalty of rs 5 03 crores the appellant was given an opportunity to file its submissions against the ascertainment of the amount by 4 august 2020 10 a tax liability of rs 39 48 crores was confirmed against gm powertech on the conclusion of the proceedings against it gm powertech was found to have no business establishment or property in himachal pradesh and the case was considered to fall into the category of a serious tax fraud 11 on 21 october 2020 the commissioner of state taxes and excise 12 himachal pradesh delegated his powers under section 83 of the hpgst act to the third respondent in exercise of the powers delegated by the commissioner 13 the third respondent issued two orders of provisional attachment dated 28 october 2020 attaching the receivables of the appellant from its customers fujikawa power and m s deepak international the attachment order issued to fujikawa power under rule 159 1 of the hpgst rules noted that it owed about rs 4 crores to the appellant the order states that the appellant was found to be involved in an itc fraud amounting to rs 5 03 82 554 rs 5 03 crores during 2017 18 and 2018 19 the order in its relevant part provides in order to protect the interests of revenue and in exercise of the powers conferred delegated by commissioner of the state taxes excise hp vide office order no 12 4 78 exn tax part 278 22 a 26780 82 dated 21 10 2020 under section 83 of the act i u s rana joint commissioner of state taxes excise south enforcement zone parwanoo hereby provisionally attach the payment to the extent of rs 5 03 82 554 of m s radha krishan industries kala amb henceforth no payment shall be allowed to be made from your company to m s radhakrishan industries without the prior permission of this department office 12 second respondent commissioner 13 drc 22 vide memo no exn jcste sezparwanoo 2020 21 1171 and exn jcste sez parwanoo 2020 21 1167 orders of provisional attachment 6 part a a similar order was issued to deepak international noting that a payment of rs 2 91 crores was owed by it to the appellant 12 on 4 november 2020 the appellant filed a representation and objections against the attachment and denied liability by an order dated 6 november 2020 the third respondent rejected the objections of the appellant the third respondent stated that collectively payments only worth rs 4 92 crores from both of the appellant s customers were attached 13 on 27 november 2020 the third respondent issued a notice to show cause to the appellant under section 74 1 of the hpgst act for recovering the itc interest and penalty the notice was issued on the basis that the appellant had claimed itc on the supplies received from gm powertech and since the inward supplies made by gm powertech were found to be fake the appellant s claim of itc was also in question 14 the orders of provisional attachment and the order passed by the commissioner on 21 october 2020 delegating his powers under section 83 of the hpgst act to the third respondent were challenged by the appellant before the 14 high court in a writ petition under article 226 15 while dismissing the writ petition the high court held that it was undisputed that the third respondent and the divisional commissioner who has been appointed as commissioner appeals under the gst act are constituted under the hpgst act and therefore it is assumed that there is no illegal or irregular exercise of jurisdiction the high court further observed that even if 14 writ petition no 5648 of 2020 7 part a there is some defect in the procedure followed during the hearing of the case it does not follow that the authority acted without jurisdiction and though the order may be irregular or defective it cannot be a nullity so long it has been passed by the competent authority 16 the high court held that a writ is ordinarily not maintainable when there exists an alternative remedy the exceptions to this rule are where the statutory authority has not acted in accordance with the provisions of the legislation or acted in defiance of the fundamental principles of judicial procedure or where an order has been passed in violation of the principles of natural justice the high court held that it would not entertain a petition under article 226 of the constitution if an efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken contains a mechanism for redressal of grievances the high court held that when a statutory forum of appeal exists an appeal should not be entertained ignoring the statutory dispensation 17 noting that the appellant has an alternative and efficacious remedy of appeal under section 107 of the hpgst act the high court refused to entertain the writ petition the high court held that it was fortified in this view by the fact that the writ petition filed by gm powertech has also not been entertained and that it has been relegated to avail of the alternative remedy 18 subsequent to the dismissal of the writ petition by the high court certain developments have taken place on 12 january 2021 the appellant sought to 8 part b inspect the files for gm powertech and stated that no documents in this regard had been provided to it in context of the proceedings initiated under section 74 in response the third respondent allowed the appellant to inspect the contents of the appellant s case file according to the respondent the appellant failed to exercise this option and did not reply to the show cause notice dated 27 november 2020 thereafter on 18 february 2021 an order under section 74 9 of the hpgst act was passed by the third respondent confirming a tax demand of rs 8 30 27 218 this order under section 74 9 has been assailed by the appellant before the appellate authority under section 107 the dismissal of the petition challenging the orders of provisional attachment is in question in the present proceedings b submissions 19 mr puneet bali learned senior counsel appearing on behalf of the appellant addressed the following submissions b 1 maintainability of the writ petition before the high court i no efficacious alternative remedy is available against the orders of provisional attachment passed under section 83 of the hpgst act the jurisdiction to pass an order under section 83 is conferred on the commissioner of state taxes although the power stands delegated to the third respondent the order is still deemed to be passed by the commissioner second respondent under the gst act an appeal against the order of the commissioner lies before the gst appellate 9 part b tribunal which has not been constituted till date thus the only remedy available to the appellant was by filing a writ petition ii reliance was placed on whirlpool corporation v registrar of 15 trademarks mumbai to argue that an alternative remedy is not a bar to the exercise of the writ jurisdiction of the high court if the writ petition is filed for enforcement of fundamental rights where there has been a violation of the principles of natural justice where the order or the proceedings are wholly without jurisdiction or when the vires of an act is challenged iii the third respondent had withdrawn the earlier orders of provisional attachment issued in january 2019 after considering the representation filed by the appellant the impugned orders of provisional attachment were issued on 28 october 2020 on the same set of facts and allegations thus the impugned orders of provisional attachment amount to a review of the earlier orders by the same respondent which is contrary to the hpgst act as it does not provide for powers of review iv the impugned orders of provisional attachment are in violation of the procedure established under sub rule 5 of rule 159 of hpgst rules which provides that an opportunity of being heard is to be given against the provisional attachment as a mandatory requirement in this case the appellant filed objections to the orders of provisional attachment on 4 november 2020 and the objections were rejected by the third respondent 15 1998 8 scc 1 10 part b on 6 november 2020 without providing an opportunity of being heard to the appellant v the reliance placed by the high court on the judgment in the case of gm 16 powertech and others v state of h p to state that a similar petition was not entertained is misplaced in that case gm powertech had challenged the order of assessment in the writ petition while the appellant has challenged the orders of provisional attachment made prior to the assessment additionally the case of gm powertech did not fall within the exceptions to the rule of alternate remedy vi the high courts should not have dismissed the writ petition on grounds of maintainability if the facts of the case are not disputed by the state as held 17 in rajasthan state electricity board v union of india and vii reliance was placed on calcutta discount co ltd v income tax 18 officer companies district i calcutta and commissioner of income tax gujarat v m s a raman and co 19 to argue that the high court can exercise its powers under article 226 of the constitution to issue an order prohibiting the tax officer from proceedings to assess the liability if the conditions precedent to the exercise of such jurisdiction have not been met b 2 challenge on merits improper invocation of section 83 i the power of provisional attachment under section 83 of the hpgst act is a drastic power and must be exercised with extreme care and caution 16 cwp no 5462 of 2020 17 2008 5 scc 632 18 air 1961 sc 372 19 air 1968 sc 49 11 part b ii the power under section 83 of the hpgst act cannot be exercised unless there is sufficient material on record to justify that the assessee is about to dispose of the whole or part of its property to thwart the ultimate collection of tax iii the existence of relevant material is a pre condition to the formation of an opinion by the commissioner iv the third respondent failed to show any material on record to indicate that the appellant is a fly by night operator or is disposing off assets to defeat the collection of tax v the stated reason for provisional attachment the initiation of proceedings and passing of an order under section 74 against the appellant s supplier gm powertech is insufficient to invoke the powers of provisional attachment against the appellant vi the third respondent has failed to show that there is a threat to the interests of the revenue on account of the appellant s alleged involvement in the said itc fraud of gm powertech vii the appellant has paid an output tax of rs 12 49 90 267 14 rs 12 49 crores for the relevant period which is more than the itc of rs 3 25 crores which the appellant has allegedly taken fraudulently viii even if the revenue has to attach the properties of the assessee immovable properties must be attached attachment of bank accounts and trading assets should be a last resort only as it paralyses the business of the assessee 12 part b ix the pendency of proceedings under sections 62 63 64 67 73 or 74 of the hpgst act is a pre condition for invoking the provisions of section 83 of the hpgst act x the provisional attachment of the appellant s assets was made on 28 october 2020 before the proceedings were initiated against the appellant under section 74 of the hpgst act on 27 november 2020 thus the provisional attachment was made without jurisdiction and in violation of section 83 xi the provisions of section 83 of the hpgst act do not provide for making provisional attachment a second time once the first attachment is withdrawn moreover the hpgst act does not provide the third respondent the power of review to review his earlier decision regarding provisional attachment xii the first provisional attachment against the appellant was withdrawn completely with immediate effect in january 2019 and the same had gained finality thus the impugned orders of provisional attachment for the second time are without the authority of law and should be set aside xiii provisional attachment of 100 of the alleged amount is not permissible as per law xiv while section 83 of the hpgst act does not provide for the percentage of alleged amount to be attached the powers under this section must be guided by other provisions of the act xv under section 74 of the hpgst act once the tax demand becomes payable an assessee can only challenge this demand in appeal after 13 part b depositing 10 of the disputed amount and the remaining demand is stayed in contrast the provisional attachment of 100 of the alleged amount even before the finalisation of the tax demand is contrary to the legislative intent xvi the third respondent has taken a contradictory stand with respect to collection of tax from the appellant even if it is admitted that the transaction between the appellant and gm powertech was a fake transaction without actual movement of goods it follows that the appellant cannot claim refund of itc and nor would the appellant be liable to pay tax on outward supplies however the appellant has already paid rs 12 49 crores of tax on outward supplies xvii the third respondent has raised a demand of rs 39 crores against gm powertech for illegally availing itc once the tax demand has been confirmed against gm powertech refusal to grant itc to the appellant would amount to double collection of tax 20 opposing these submissions mr akshay amritanshu learned counsel appearing on behalf of the state of himachal pradesh submitted that i the slp should be dismissed as the appellant has an alternate and efficacious remedy of an appeal under section 107 of the hpgst act moreover the slp has been rendered infructuous due to the order dated 18 february 2021 under section 74 9 of the hpgst act and the consequent appeal filed by the appellant against this order before the appellate authority 14 part b ii in paragraph 4 of the impugned judgment it has been noted that the appellant had admitted that it had an alternative remedy by way of an appeal under section 107 of the hpgst act iii the delegation of powers under section 83 of the hpgst act by the second respondent to the third respondent does not imply that there was an irregular or illegal exercise of jurisdiction by the second respondent iv the order under section 74 9 against gm powertech has not been challenged and has gained finality since it has been found that all purchases of gm powertech were fraudulent there could have been no outward sale to the appellant thus the transaction between gm powertech and appellant would also be fraudulent v the orders of provisional attachment were issued after the proceedings against gm powertech had concluded vi gm powertech had no property or business establishment in himachal pradesh in order to avoid a similar situation against the appellant and to protect the interests of revenue the impugned orders of provisional attachment were passed vii the proceedings of provisional attachment under section 83 of the hpgst act had concluded after rejection of the objections filed by the appellant on 6 november 2020 the appellant participated in these proceedings and did not challenge the orders of provisional attachment thus the appellant is estopped from challenging the initiation of proceedings under section 83 of the hpgst act 15 part b viii the impugned orders of provisional attachment were based on a fresh set of allegations after the proceedings against gm powertech had been concluded and it was found that gm powertech had no business or properties in himachal pradesh ix after the appellant filed objections to the orders of provisional attachment it was in the discretion of the commissioner whether or not to grant an opportunity of a hearing to the appellant x merely because the appellant has paid rs 12 crores of tax does not imply that the appellant did not engage in the itc fraud xi there was no violation of the principles of natural justice as an order of provisional attachment does not require a prior notice to be issued to the assessee xii the necessary prerequisites for triggering section 83 of the hpgst act were complied with xiii the appellant had not sought any prior stay on the orders of provisional attachment and thus it is not conceivable that the business of the appellant has become paralyzed due to these orders xiv the provisional attachment is not only for the purpose of recovery but is intended to safeguard the interests of the revenue while the proceedings are pending and xv the legislature did not provide any quantum or percentage for the purpose of provisional attachment under section 83 of the act thus a comparison with other provisions of the hpgst act including section 107 is incorrect 16 part c c legal position 21 the following issues arise in the present case i whether a writ petition challenging the orders of provisional attachment was maintainable under article 226 of the constitution before the high court and ii if the answer to i is in the affirmative whether the orders of provisional attachment constitute a valid exercise of power 22 the appellant has advanced submissions on and adverted to the merits of the proceedings initiated under section 74 of the hpgst act the order dated 18 february 2021 under section 74 9 of the hpgst act is not in challenge before this court an appeal against the order is pending before the appellate authority under section 107 of the hpgst act we will not adjudicate upon the merits of the order under section 74 9 this judgment is confined to the two issues formulated above 23 we shall now review the position of law on the questions before us c 1 maintainability of writ petition before the high court 24 the high court has dealt with the maintainability of the petition under article 226 of the constitution relying on the decision of this court in assistant commissioner ct ltu kakinada and others v glaxo smith kline consumer health care limited 20 the high court noted that although it can entertain a petition under article 226 of the constitution it must not do so when 20 air 2020 sc 2819 17 part c the aggrieved person has an effective alternate remedy available in law however certain exceptions to this rule of alternate remedy include where the statutory authority has not acted in accordance with the provisions of the law or acted in defiance of the fundamental principles of judicial procedure or has resorted to invoke provisions which are repealed or where an order has been passed in violation of the principles of natural justice applying this formulation the high court noted that the appellant has an alternate remedy available under the gst act and thus the petition was not maintainable 25 in this background it becomes necessary for this court to dwell on the rule of alternate remedy and its judicial exposition in whirlpool corporation v 21 registrar of trademarks mumbai a two judge bench of this court after reviewing the case law on this point noted 14 the power to issue prerogative writs under article 226 of the constitution is plenary in nature and is not limited by any other provision of the constitution this power can be exercised by the high court not only for issuing writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari for the enforcement of any of the fundamental rights contained in part iii of the constitution but also for any other purpose 15 under article 226 of the constitution the high court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition but the high court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available the high court would not normally exercise its jurisdiction but the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies namely where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an act is challenged there is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on 21 1998 8 scc 1 whirlpool 18 part c some old decisions of the evolutionary era of the constitutional law as they still hold the field emphasis supplied 26 following the dictum of this court in whirlpool supra in harbanslal 22 sahnia v indian oil corpn ltd this court noted that 7 so far as the view taken by the high court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion in an appropriate case in spite of availability of the alternative remedy the high court may still exercise its writ jurisdiction in at least three contingencies i where the writ petition seeks enforcement of any of the fundamental rights ii where there is failure of principles of natural justice or iii where the orders or proceedings are wholly without jurisdiction or the vires of an act is challenged see whirlpool corpn v registrar of trade marks 1998 8 scc 1 the present case attracts applicability of the first two contingencies moreover as noted the appellants dealership which is their bread and butter came to be terminated for an irrelevant and non existent cause in such circumstances we feel that the appellants should have been allowed relief by the high court itself instead of driving them to the need of initiating arbitration proceedings emphasis supplied 27 the principles of law which emerge are that i the power under article 226 of the constitution to issue writs can be exercised not only for the enforcement of fundamental rights but for any other purpose as well ii the high court has the discretion not to entertain a writ petition one of the restrictions placed on the power of the high court is where an effective alternate remedy is available to the aggrieved person 22 2003 2 scc 107 19 part c iii exceptions to the rule of alternate remedy arise where a the writ petition has been filed for the enforcement of a fundamental right protected by part iii of the constitution b there has been a violation of the principles of natural justice c the order or proceedings are wholly without jurisdiction or d the vires of a legislation is challenged iv an alternate remedy by itself does not divest the high court of its powers under article 226 of the constitution in an appropriate case though ordinarily a writ petition should not be entertained when an efficacious alternate remedy is provided by law v when a right is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability resort must be had to that particular statutory remedy before invoking the discretionary remedy under article 226 of the constitution this rule of exhaustion of statutory remedies is a rule of policy convenience and discretion and vi in cases where there are disputed questions of fact the high court may decide to decline jurisdiction in a writ petition however if the high court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction such a view would not readily be interfered with 20 part c 28 these principles have been consistently upheld by this court in seth chand ratan v pandit durga prasad 23 babubhai muljibhai patel v nandlal khodidas barot 24 and rajasthan seb v union of india 25 among other decisions c 2 provisional attachment 29 at this stage we will advert to relevant precedents outlining the contours of the power of provisional attachment and specifically in the context of provisions worded similarly to section 83 of the hpgst act 30 the decision of this court in raman tech process engg co and anr v 26 solanki traders was concerned with the power of a civil court under order 38 rule 5 of the cpc to order an attachment before judgment in that case proceedings had been instituted by the respondent for the recovery of moneys due for the supply of material to the appellant the plaintiff moved an application under order 38 rule 5 for a direction to the defendants to furnish security for the suit claim and if they failed to do so for attachment before judgment this court described the power of attachment before judgment in the following terms 5 the power under order 38 rule 5 civil procedure code is a drastic and extraordinary power such power should not be exercised mechanically or merely for the asking it should be used sparingly and strictly in accordance with the rule the purpose of order 38 rule 5 not to convert an unsecured debt into a secured debt any attempt by a plaintiff to utilize the provisions of order 38 rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiffs by obtaining orders of 23 2003 5 scc 399 24 1974 2 scc 706 25 2008 5 scc 632 26 2008 1 r c r civil 195 21 part c attachment before judgment and forcing the defendants for out of court settlements under threat of attachment 6 a defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment a plaintiff should show prima facie that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property with the intention of obstructing or delaying the execution of any decree that may be passed against him before power is exercised under order 38 rule 5 cpc courts should also keep in view the principles relating to grant of attachment before judgment internal citation omitted 31 a body of precedent has emerged in the high courts on the exercise of the 27 power under section 83 of the cgst act akin to the state gst act the shared learning which emerges from these decisions of the high court needs 28 recognition in valerius industries v union of india the gujarat high court laid down the principles for the construction of section 83 of the sgst cgst act the high court noted that a provisional attachment on the basis of a subjective satisfaction absent any cogent or credible material constitutes malice in law it further outlined the principles for the exercise of the power 52 the order of provisional attachment before the assessment order is made may be justified if the assessing authority or any other authority empowered in law is of the opinion that it is necessary to protect the interest of revenue however the subjective satisfaction should be based on some credible materials or information it is not any and every material howsoever vague and indefinite or distant remote or far fetching which would warrant the formation of the belief 1 the power conferred upon the authority under section 83 of the act for provisional attachment could be termed as a very 27 sgst act 28 2019 30 gstl 15 gujarat 22 part c drastic and far reaching power such power should be used sparingly and only on substantive weighty grounds and reasons 3 the power of provisional attachment under section 83 of the act should be exercised by the authority only if there is a reasonable apprehension that the assessee may default the ultimate collection of the demand that is likely to be raised on completion of the assessment it should therefore be exercised with extreme care and caution 4 the power under section 83 of the act for provisional attachment should be exercised only if there is sufficient material on record to justify the satisfaction that the assessee is about to dispose of wholly or any part of his her property with a view to thwarting the ultimate collection of demand and in order to achieve the said objective the attachment should be of the properties and to that extent it is required to achieve this objective 5 the power under section 83 of the act should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee 6 the attachment of bank account and trading assets should be resorted to only as a last resort or measure the provisional attachment under section 83 of the act should not be equated with the attachment in the course of the recovery proceedings 7 the authority before exercising power under section 83 of the act for provisional attachment should take into consideration two things i whether it is a revenue neutral situation ii the statement of output liability or input credit having regard to the amount paid by reversing the input tax credit if the interest of the revenue is sufficiently secured then the authority may not be justified in invoking its power under section 83 of the act for the purpose of provisional attachment emphasis supplied 29 32 in the same vein in jai ambey filament pvt ltd v union of india the gujarat high court reiterated that the subjective satisfaction as to the need for 29 2021 44 gstl 41 gujarat 23 part c provisional attachment must be based on credible information that the attachment is necessary this opinion cannot be formed based on imaginary grounds wishful thinking howsoever laudable that may be the high court further held that on his opinion being challenged the competent officer must be able to show the material on the basis of which the belief is formed 33 in patran steel rolling mill v assistant commissioner of state tax 30 unit 2 the gujarat high court cited two instances in which provisional attachment would be apposite these being where the assessee is a fly by night operator and if the assessee will not be able to pay its dues after assessment 34 similar to the decisions of the gujarat high court other high courts have recognized the restrictive nature of the power of provisional attachment under section 83 of the sgst act and the need for it to be based on adequate substantive material the high courts have also underscored the extraordinary 31 nature of this power necessitating due caution in its exercise 35 the delhi high court in proex fashion private limited v government 32 of india outlined the following statutorily stipulated conditions for the invocation of section 83 of the sgst act i order should be passed by commissioner ii proceeding under section 62 or 63 or 64 or 67 or 73 or 74 should be pending 30 2019 20 gstl 732 gujarat 31 bindal smelting private limited v addl director general of gst intelligence 2020 34 g s t l 592 p h society for integrated development of urban and rural areas v commissioner of income tax a p ii hyd 2001 252 itr 642 vinod kumar murlidhar prop of chechani trading co v state of gujarat special civil application no 12498 of 2020 dated 9 december 2020 32 wp c 11245 of 2020 dated 6 january 2021 24 part c iii commissioner must form an opinion iv order should be passed to protect interest of revenue v it must be necessary to attach property 33 36 in ufv india global education v union of india the punjab and haryana high court held that pendency of proceedings under the sections mentioned in section 83 viz sections 62 or 63 or 64 or 67 or 73 or 74 is the sine qua non for an order of provisional attachment to be issued under section 83 37 another case which is relevant for our purposes is the decision of the 34 bombay high court in kaish impex private limited v union of india in this case the taxation authorities were enquiring into fraudulent claiming of itc on the basis of fictitious transactions by an export firm in delhi against whom proceedings under section 67 of the cgst act had been initiated on tracing the money trail the petitioner was summoned under section 70 of the cgst act and his bank accounts were provisionally attached under section 83 of the cgst act on dealing with the question of whether the bank accounts of the petitioner could be attached when there were no pending proceedings against him and proceedings were pending against another taxable entity the high court held that the proceedings referred to under section 83 of the act must be pending against the taxable entity whose property is being attached the high court noted that 18 section 83 though uses the phrase pendency of any proceedings the proceedings are referable to section 62 63 64 67 73 and 74 of the act and none other the bank 33 2020 43 gstl 472 34 2020 6 air bom r 122 25 part c account of the taxable person can be attached against whom the proceedings under the sections mentioned above are initiated section 83 does not provide for an automatic extension to any other taxable person from an inquiry specifically launched against a taxable person under these provisions section 83 read with section 159 2 and the form gst drc 22 show that a proceeding has to be initiated against a specific taxable person an opinion has to be formed that to protect the interest of revenue an order of provisional attachment is necessary the format of the order i e the form gst drc 22 also specifies the particulars of a registered taxable person and which proceedings have been launched against the aforesaid taxable person indicating a nexus between the proceedings to be initiated against a taxable person and provisional attachment of bank account of such taxable person emphasis supplied c 3 delegation of authority under cgst act 38 the learned counsel for the respondent state during the course of his submissions has also sought to justify the delegation of powers by the commissioner to the joint commissioner by way of the impugned notification dated 21 october 2020 for the purpose of attachment of properties under section 83 of the hpgst act in this regard reliance was placed on nathanlal maganlal 35 chauhan v state of gujarat where the gujarat high court was considering the validity of a notification by which the commissioner of state tax had delegated all the functions under the sgst act to the special commissioner and additional commissioners of state tax in rejecting a challenge to this notification the high court held that 39 as pointed out by the supreme court in the case of sahni silk mills internal citation omitted the courts should normally be 35 2020 scc online guj 1811 26 part d rigorous while requiring the power to be exercised by the persons or the bodies authorized by the statutes as noted above it is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else at the same time in the present administrative setup the extreme judicial aversion to delegation should not be carried to an extreme there is only one commissioner of state tax in the state of gujarat and having regard to the enormous functions and duties to be discharged under the new tax regime he has been empowered to delegate his powers to the special commissioner of state tax and the additional commissioners of state tax 40 we take notice of the fact that the delegation has been authorized expressly under section 5 3 of the act we would have definitely interfered if the special commissioner or the additional commissioners would have further delegated the power to officers subordinate to them such is not the case over here 41 in the impugned notification it has been stated that the functions delegated shall be under the overall supervision of the commissioner when the commissioner stated that his functions were delegated subject to his overall supervision it did not mean or should not be construed as if he reserved to himself the right to intervene to impose his own decision upon his delegate the words in the last part of the impugned notification would mean that the commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action in other words the administrative side of the delegate s duties were to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case once the powers are delegated for the purpose of section 69 of the act the subjective satisfaction or rather the reasonable belief should be that of the delegated authority emphasis supplied d analysis 39 the essence of the present case lies in how the power to order a provisional attachment under section 83 of the hpgst act is construed before interpreting it the provision is extracted below for convenience of reference 27 part d 83 provisional attachment to protect revenue in certain cases 1 where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74 the commissioner is of the opinion that for the purpose of protecting the interest of the government revenue it is necessary so to do he may by order in writing attach provisionally any property including bank account belonging to the taxable person in such manner as may be prescribed 2 every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub section 1 40 the marginal note to section 83 provides some indication of parliamentary intent section 83 provides for provisional attachment to protect revenue in certain cases the first point to note is that the attachment is provisional provisional in the sense that it is in aid of something else the second point to note is that the purpose is to protect the revenue the third point is the expression in certain cases which shows that in order to effect a provisional attachment the conditions which have been spelt out in the statute must be fulfilled marginal notes it is well settled do not control a statutory provision but provide some guidance in regard to content put differently a marginal note indicates the drift of the provision with these prefatory comments the judgment must turn to the essential task of statutory construction the language of the statute has to be interpreted bearing in mind that it is a taxing statute which comes up for interpretation the provision must be construed on its plain terms equally in interpreting the statute we must have regard to the purpose underlying the provision an interpretation which effectuates the purpose must be preferred particularly when it is supported by the plain meaning of the words used 28 part d 41 sub section 1 of section 83 can be bifurcated into several parts the first part provides an insight on when in point of time or at which stage the power can be exercised the second part specifies the authority to whom the power to order a provisional attachment is entrusted the third part defines the conditions which must be fulfilled to validate the power or ordering a provisional attachment the fourth part indicates the manner in which an attachment is to be leveled the final and the fifth part defines the nature of the property which can be attached each of these special divisions which have been explained above is for convenience of exposition while they are not watertight compartments ultimately and together they aid in validating an understanding of the statute each of the above five parts is now interpreted and explained below i the power to order a provisional attachment is entrusted during the pendency of proceedings under any one of six specified provisions sections 62 63 64 67 73 or 74 in other words it is when a proceeding under any of these provisions is pending that a provisional attachment can be ordered ii the power to order a provisional attachment has been vested by the legislature in the commissioner iii before exercising the power the commissioner must be of the opinion that for the purpose of protecting the interest of the government revenue it is necessary so to do iv the order for attachment must be in writing v the provisional attachment which is contemplated is of any property including a bank account belonging to the taxable person and 29 part d vi the manner in which a provisional attachment is levied must be specified in the rules made pursuant to the provisions of the statute 42 under sub section 2 of section 83 a provisional attachment ceases to have effect upon the expiry of a period of one year of the order being passed under sub section 1 the power to levy a provisional attachment has been entrusted to the commissioner during the pendency of proceedings under sections 62 63 64 67 73 or as the case may be section 74 section 62 contains provisions for assessment for non filing of returns section 63 provides for assessment of unregistered persons section 64 contains provisions for summary assessment section 67 elucidates provisions for inspection search and seizure before we dwell on section 74 it would be material to note the provisions of section 70 which are extracted below 70 power to summon persons to give evidence and produce documents 1 the proper officer under this act shall have powers to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner as provided in the case of a civil court under the provisions of the code of civil procedure 1908 5 of 1908 2 every such inquiry referred to in sub section 1 shall be deemed to be a judicial proceedings w truncated 1783 2021_c a no 000418 2021 nclt nclt nclat 2021 02 26 ca 418 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 418 of 2021 mr surender kumar gupta and others appellant s versus j m housing limited and others respondent s o r d e r 1 the appellants filed a petition under sections 241 and 242 of the companies act 2013 complaining of oppression and mismanagement an ex parte order was passed by the national company law tribunal on 5 october 2020 instead of moving the nclt for vacating the ad interim order the respondents moved the national company law appellate tribunal in appeal the nclat by its impugned order dated 18 december 2020 set aside the order of the nclt on the ground that it was passed in violation of the principles of natural justice having made this observation the nclat has also made certain observations on merits and remitted the matter to the nclt for de novo consideration on merits after providing an opportunity of being heard to the parties 2 we have heard mr rakesh kumar learned counsel appearing on behalf of the appellants and mr shyam divan learned senior counsel appearing for the first respondent with mr p k mittal ca 418 2021 2 3 the appropriate course of action for the respondents faced with an ex parte order of the nclt would have been to apply to the nclt for vacating or modifying the ad interim order the nclat was not correct in coming to the conclusion that the order of the nclt has to be set aside on the ground that it was passed without furnishing to the respondent an opportunity of being heard the essence of an ex parte order is that it is passed without hearing the other side in a situation where the adjudicating authority is satisfied that a case involving a grave urgency is made out the adjudicating authority before issuing an ex parte ad interim order must be satisfied of the irretrievable injury which may be caused to the applicant if a protective order is not passed a prima facie case and the balance of convenience must also be weighed in the nclat has not dealt with the fundamental issue of whether the respondents had established an urgent case for the grant of ex parte relief the principle which has been propounded by the nclat is rather novel to civil jurisprudence and betrays a lack of comprehension of basic legal principles 4 the nclat has remanded the proceedings back to the nclt for fresh consideration on merits the grievance of the appellants is that this would preclude them from applying for the grant of ad interim relief during the pendency of the proceedings before the nclt and the final hearing of the petition may take several years the appellants should in our view be granted liberty to apply afresh before the nclt for interim relief on the basis of the same application on which the nclt passed its order in order to enable the respondents to have an opportunity to controvert the application ca 418 2021 3 for interim relief we direct that they may file their reply if any within a period of two weeks from today the nclt shall reconsider the application for interim relief in terms of the above directions after hearing the parties we clarify that we have not expressed any opinion on the merits of the rival contentions which shall be addressed before the nclt the order of the nclat shall accordingly stand set aside and be substituted by the directions which have been issued in the above terms the nclt shall take a final decision on the application of interim relief within a period of four weeks from the date on which a certified copy of this order is placed on its record 5 the civil appeal is accordingly disposed of 6 pending applications if any stand disposed of j dr dhananjaya y chandrachud j m r shah new delhi february 26 2021 ckb ca 418 2021 4 item no 16 court 6 video conferencing section xvii s u p r e m e c o u r t o f i n d i a record of proceedings civil appeal no 418 2021 surender kumar gupta ors appellant s versus j m housing limited ors respondent s with appln s for ia no 20490 2021 exemption from filing c c of the impugned judgment and ia no 20489 2021 ex parte stay date 26 02 2021 this appeal was called on for hearing today coram hon ble dr justice d y chandrachud hon ble mr justice m r shah for appellant s mr rakesh kumar adv mr saurabh mishra aor ms preeti kashyap adv for respondent s mr shaym divan sr adv mr p k mittal adv mr praveen mittal adv mr rajesh goyal aor upon hearing the counsel the court made the following o r d e r 1 the civil appeal is disposed of 2 pending applications if any stand disposed of chetan kumar saroj kumari gaur a r cum p s court master signed reportable order is placed on the file ca 418 2021 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 418 of 2021 mr surender kumar gupta and others appellant s versus j m housing limited and others respondent s o r d e r 1 the appellants filed a petition under sections 241 and 242 of the companies act 2013 complaining of oppression and mismanagement an ex parte order was passed by the national company law tribunal on 5 october 2020 instead of moving the nclt for vacating the ad interim order the respondents moved the national company law appellate tribunal in appeal the nclat by its impugned order dated 18 december 2020 set aside the order of the nclt on the ground that it was passed in violation of the principles of natural justice having made this observation the nclat has also made certain observations on merits and remitted the matter to the nclt for de novo consideration on merits after providing an opportunity of being heard to the parties 2 we have heard mr rakesh kumar learned counsel appearing on behalf of the appellants and mr shyam divan learned senior counsel appearing for the first respondent with mr p k mittal ca 418 2021 2 3 the appropriate course of action for the respondents faced with an ex parte order of the nclt would have been to apply to the nclt for vacating or modifying the ad interim order the nclat was not correct in coming to the conclusion that the order of the nclt has to be set aside on the ground that it was passed without furnishing to the respondent an opportunity of being heard the essence of an ex parte order is that it is passed without hearing the other side in a situation where the adjudicating authority is satisfied that a case involving a grave urgency is made out the adjudicating authority before issuing an ex parte ad interim order must be satisfied of the irretrievable injury which may be caused to the applicant if a protective order is not passed a prima facie case and the balance of convenience must also be weighed in the nclat has not dealt with the fundamental issue of whether the respondents had established an urgent case for the grant of ex parte relief the principle which has been propounded by the nclat is rather novel to civil jurisprudence and betrays a lack of comprehension of basic legal principles 4 the nclat has remanded the proceedings back to the nclt for fresh consideration on merits the grievance of the appellants is that this would preclude them from applying for the grant of ad interim relief during the pendency of the proceedings before the nclt and the final hearing of the petition may take several years the appellants should in our view be granted liberty to apply afresh before the nclt for interim relief on the basis of the same application on which the nclt passed its order in order to enable the respondents to have an opportunity to controvert the application ca 418 2021 3 for interim relief we direct that they may file their reply if any within a period of two weeks from today the nclt shall reconsider the application for interim relief in terms of the above directions after hearing the parties we clarify that we have not expressed any opinion on the merits of the rival contentions which shall be addressed before the nclt the order of the nclat shall accordingly stand set aside and be substituted by the directions which have been issued in the above terms the nclt shall take a final decision on the application of interim relief within a period of four weeks from the date on which a certified copy of this order is placed on its record 5 the civil appeal is accordingly disposed of 6 pending applications if any stand disposed of j dr dhananjaya y chandrachud j m r shah new delhi february 26 2021 ckb ca 418 2021 4 item no 16 court 6 video conferencing section xvii s u p r e m e c o u r t o f i n d i a record of proceedings civil appeal no 418 2021 surender kumar gupta ors appellant s versus j m housing limited ors respondent s with appln s for ia no 20490 2021 exemption from filing c c of the impugned judgment and ia no 20489 2021 ex parte stay date 26 02 2021 this appeal was called on for hearing today coram hon ble dr justice d y chandrachud hon ble mr justice m r shah for appellant s mr rakesh kumar adv mr saurabh mishra aor ms preeti kashyap adv for respondent s mr shaym divan sr adv mr p k mittal adv mr praveen mittal adv mr rajesh goyal aor upon hearing the counsel the court made the following o r d e r 1 the civil appeal is disposed of 2 pending applications if any stand disposed of chetan kumar saroj kumari gaur a r cum p s court master signed reportable order is placed on the file 1845 2021_slp c no 002492 2021 2011 04 25 2492 of 2021 1956 tc 26 reportable in the supeme court of india civil appellate jurisdiction special leave petition c no 2492 of 2021 k p natarajan anr petitioner s versus muthalammal ors respondent s j u d g m e n t v ramasubramanian j 1 in a civil revision petition filed under section 115 of the code of civil procedure 1908 for short the code challenging an order of the trial court refusing to condone the delay of 862 days in seeking to set aside an ex parte decree for specific performance the high court found that the ex parte decree was a nullity as it was passed against a minor without the minor being represented by a guardian duly appointed in terms of the procedure contemplated 1 under order xxxii rule 3 of the code therefore the high court exercising its power of superintendence under article 227 of the constitution set aside the ex parte decree itself on condition that the petitioners before the high court defendants pay a sum of rs 2 50 000 representing the amount already spent by the decree holders in purchasing stamp paper etc aggrieved by the said order of the high court the decree holders are before us in this special leave petition 2 we have heard mr s nagamuthu learned senior counsel appearing for the petitioners plaintiffs and mr r balasubramanian learned senior counsel appearing for the respondents defendants 3 in a suit o s no 264 of 2013 filed by the petitioners herein for specific performance of an agreement of sale dated 25 04 2011 the respondents were duly served with summons but after having entered appearance through counsel they remained ex parte the trial court decreed the suit ex parte on 08 04 2015 4 at this stage it may be relevant to take note of one fact namely that the petitioners sought as an alternate relief a decree 2 for refund of the money paid with interest at 18 per annum in the event of the court not granting the relief of specific performance but the trial court held albeit without reasons that the petitioners are entitled for the primary relief of specific performance 5 in the plaint as it was filed by the petitioners herein the third defendant was described as minor s aravindarajan aged about 16 years son of sampathkumar represented by the next friend father m sampathkumar therefore the petitioners had filed along with the plaint an application in i a no 981 of 2013 under order xxxii rule 3 of the code for appointing the second respondent herein his father and the second defendant as the guardian of the minor as noted by the high court the trial court after serving notice on the second defendant passed an order in i a no 981 of 2013 on 23 03 2014 to the following effect batta served vakalat by guardian to minor filed hence this petition is closed 6 seeking execution of the decree the petitioners filed e p no 33 of 2015 notices were served on all the respondents in the execution petition and the execution petition is said to have come 3 up for hearing on two dates in december 2015 and on several dates in the year 2016 eventually the respondents were set ex parte in the execution petition on 18 10 2016 and the petition was allowed 7 thereafter the respondents filed an application in november 2016 for setting aside the ex parte order in the execution petition it was numbered only in the year 2017 as e a no 40 of 2017 8 but in the meantime the petitioners were called upon to deposit non judicial stamp papers of the value of rs 1 98 000 for the execution of the sale deed they did so and a sale deed was in fact executed by the court on 04 01 2017 9 it is only thereafter that the respondents filed an application in i a no 142 of 2017 for condonation of the delay of 862 days in seeking to set aside the ex parte decree this application filed on 19 09 2017 was dismissed by the trial court by an order dated 28 11 2017 primarily on three grounds namely i that there was no proper explanation for the delay ii that even the written statement was not filed within the time stipulated in order viii rule 7 and iii and that after allowing even the execution to proceed ex parte and after having allowed the sale deed to be 4 executed by the executing court the respondents cannot seek condonation of the huge delay 10 aggrieved by the dismissal of the petition to condone the delay in seeking to set aside the ex parte decree the respondents filed a revision petition under section 115 of the code before the high court entertaining a doubt about the appointment of a guardian for the third defendant the learned judge summoned the original records in the suit from the trial court finding that i a no 981 of 2013 filed along with the plaint for the appointment of a guardian for the third defendant was not properly dealt with and that there was no appointment of a guardian for the minor as required under order xxxii rule 3 the learned judge invoked the general power of superintendence under article 227 of the constitution and set aside the ex parte decree itself without going into the question of delay and without examining whether there was sufficient cause for condonation of delay in order to ensure that the petitioners decree holders are not poorer after a decree or because of the decree the learned judge put the respondents on condition that they should pay of rs 2 50 000 as cost to the petitioners herein on or before 5 16 10 2020 as the petitioners decree holders had already deposited stamp papers of the value of rs 1 98 000 and got the sale deed executed 11 it appears that pursuant to the aforesaid order of the high court the respondents deposited the cost of rs 2 50 000 on 12 10 2020 as a consequence the trial court appears to have taken up the suit for trial after framing issues it is stated by mr r balasubramanian learned senior counsel for the respondents that the suit now stands posted for examination of pw 1 12 the main grounds of attack to the impugned order of the high court as articulated by mr s nagamuthu learned senior counsel for the petitioners are i that the high court ought not to have set aside an ex parte decree in a revision petition arising out of an application under section 5 of the limitation act 1963 ii that the court was not even entitled to invoke equity in favour of the respondents who were grossly negligent first in defending the suit next in defending the executing proceedings and then in seeking to set aside the ex parte decree after nearly a year of seeking to set aside the ex parte order passed in the execution petition and iii 6 that it was not even one of the grounds raised or points argued by the respondents herein in their revision petition before the high court either that the procedure prescribed under order xxxii rule 3 of the code was not followed or that a grave prejudice or injustice has been caused to the defendant minor on account of the failure if any on the part of the trial court 13 mr r balasubramanian learned senior counsel appearing for the respondents contended in response that the revisional jurisdiction of the high court under article 227 are wider in nature and that when the high court finds that the trial court has not taken care of the interest of the minor who was a party to the proceeding by following the procedure prescribed by law the high court cannot shut its eyes on the basis of technicalities 14 we have carefully considered the rival contentions there is no dispute on facts and there is no escape from the conclusion that the respondents have been grossly negligent in defending the suit as well as the execution proceedings but the fact remains that while the parties can afford to remain negligent the court cannot the high court has found after summoning the records from the 7 trial court that as a matter of fact the trial court failed to appoint a guardian for the third respondent minor in a manner prescribed by law as pointed out earlier an application was in fact filed by the petitioners herein plaintiffs under order xxxii rule 3 of the code in i a no 981 of 2013 the said application was closed by the trial court by an order passed on 23 03 2014 which we have extracted elsewhere the manner in which the trial court disposed of the application under order xxxii rule 3 is without doubt improper and cannot at all be sustained especially in the teeth of the madras amendment 15 order xxxii rule 3 is found in the first schedule to the code under section 121 of the code the rules in the first schedule shall have effect as if enacted in the body of the code until annulled or altered in accordance with the provisions of part x which comprises of sections 121 to 131 the high courts are empowered under section 122 of the code to annul alter or add to all or any of the rules in the first schedule for regulating the procedure of the civil courts subject to their superintendence 8 16 in exercise of such a power the high court of judicature at madras has made rule 3 of order xxxii of the code much more elaborate than how the rule was originally framed 17 in the impugned order the learned judge has extracted order xxxii rule 3 of the code in its original form but in its application to civil courts subject to the superintendence of the madras high court order xxxii rule 31 actually reads as follows 3 qualifications to be a next friend or guardian 1 any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit provided that the interest of that person is not adverse to that of the minor and that he is not in the case of a next friend defendant or in the case of a guardian for the suit a plaintiff 2 appointed or declared guardians to be preferred and to be superseded only for reasons recorded where a minor has a guardian appointed or declared by competent authority no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the court considers for reasons to be recorded that it is for the minor s welfare that another person be permitted to act or be appointed as the case may be 3 guardians to be appointed by court where the defendant is a minor the court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for the minor 1 the amendment was made by a notification in p dis no 256 of 1938 vide st george gazette dated 13 3 1938 unfortunately most of the bare acts published in recent times and even the 19th edition of mulla on the code of civil procedure does not make a mention of the notification number and date in so far as the madras amendment is concerned 9 3a a person appointed under sub rule 3 to be guardian for the suit for a minor shall unless his appointment is terminated by retirement removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceeding in execution of a decree 4 appointment to be on application and where necessary after notice to proposed guardian an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff the application where it is by the plaintiff shall set forth in the order of their suitability a list of persons with their full addresses for service of notice in form no 11a set forth in appendix h hereto who are competent and qualified to act as guardian for the suit for the minor defendant the court may for reasons to be recorded in any particular case exempt the applicant from furnishing the list referred to above 5 contents of affidavit in support of the application for appointment of guardian the application referred to in the above sub rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed the affidavit shall further state according to the circumstances of each case a particulars of any existing guardian appointed or declared by competent authority b the name and address of the person if any who is the de facto guardian of the minor c the names and addresses of persons if any who in the event of either the natural or the de facto guardian or the guardian appointed or declared by competent authority not being permitted to act are by reason of relationship or interest or otherwise suitable persons to act as guardians for the minor for the suit 10 6 application for appointment of guardian to be separate from application for bringing on record the legal representatives of a deceased party an application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representatives of a deceased plaintiff or defendant the applications shall be by separate petitions 7 notice of application to be given to persons interested in the minor defendant other than the proposed guardian no order shall be made on any application under sub rule 4 above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian upon notice to the father or other natural guardian of the minor or where there is no father or other natural guardian to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this sub rule the notice required by this sub rule shall be served six clear days before the day named in the notice for the hearing of the application and may be in form no 11 set forth in appendix h hereto 8 special provision to shorten delay in getting a guardian appointed where the application is by the plaintiff he shall along with his application and affidavit referred to in sub rules 4 and 5 above produce the necessary forms in duplicate filled in to the extent that is possible at that stage for the issue simultaneous of notices to two at least of the proposed guardians for the suit to be selected by the court from the list referred to in sub rule 4 above together with a duly stamped voucher indicating that the fees prescribed for service have been paid if one or more of the proposed guardians signify his or their consent to act the court shall appoint one of them and intimate the fact of such appointment to the person appointed by registered post if no one of the persons served signifies his consent to act the court shall proceed to serve simultaneously another selected two if so many there be of the persons named in the 11 list referred to in sub rule 4 above but no fresh application under sub rule 4 shall be deemed necessary the applicant shall within three days of intimation of unwillingness by the first set of proposed guardians pay the prescribed fee for service and produce the necessary forms duly filled in 9 no personal shall be appointed guardian without his consent no person shall without his consent be appointed guardian for the suit whenever an application is made proposing the name of a person as guardian for the suit a notice in form no 11 a set forth in appendix h hereto shall be served on the proposed guardian unless the applicant himself be the proposed guardian or the proposed guardian consents 10 court guardian when to be appointed how he is to be placed in funds where the court finds no person fit and willing to act as guardian for the suit the court may appoint any of its officers or a pleader of the court to be the guardian and may direct that the costs to be incurred by that officer in the performance of the duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of any fund in court in which the minor is interested and may give directions for the repayment or allowance of the costs as justice and the circumstances of the case may require 11 funds for a guardian other than court guardian to defend when a guardian for the suit of a minor defendant is appointed and it is made to appear to the court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby the court may from time to time order the plaintiff to advance monies to the guardian for purpose of his defence and all monies so advanced shall form part of the costs of the plaintiff in the suit the order shall direct that the guardians as and when directed shall file in court an account of the monies so received by him 12 18 there is a great deal of difference between the rules of procedure laid down in rule 3 of order xxxii by the central act and rule 3 as applicable to civil courts subject to the superintendence of madras high court order xxxii rule 3 in its original form reads as follows 3 guardian for the suit to be appointed by court for minor defendant 1 where the defendant is a minor the court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for such minor 2 an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff 3 such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed 4 no order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no such guardian upon notice to the father or where there is no father to the mother or where there is no father or mother to other natural guardian of the minor or where there is no father mother or other natural guardian to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this sub rule 4a the court may in any case if it thinks fit issue notice under sub rule 4 to the minor also 13 5 a person appointed under sub rule 1 to be guardian for the suit for a minor shall unless his appointment is terminated by retirement removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree 19 a comparison of the two sets of rules show that the rules applicable to courts subject to the superintendence of the madras high court are more elaborate and also rigorous we may immediately note i that sub rules 1 and 2 of rule 3 of the rules applicable to courts subject to the superintendence of the madras high court hereinafter referred to as applicable rules for the purpose of convenience are additional requirements ii that sub rule 3 of rule 3 of the applicable rules is a reproduction of sub rule 1 of rule 3 of the original code iii that sub rule 3 a of rule 3 of the applicable rules is a reproduction of sub rule 5 of the central act iv sub rule 7 of rule 3 of the applicable rules is an improved version of sub rule 4 of rule 3 of the central act 20 more importantly sub rules 4 5 6 and a part of sub rule 7 of rule 3 of order xxxii of the applicable rules prescribe certain additional requirements which are as follows i when an 14 application for the appointment of a guardian is by the plaintiff it shall set forth in the order of their suitability a list of persons with their full addresses for service of notice in form no 11 a set forth in appendix h who are competent and qualified to act as guardian for the minor defendant ii the application for appointment of a guardian should be supported by an affidavit not merely verifying as in the central act the fact that the proposed guardian has no interest in the matters in controversy adverse to that of the minor but also stating additional particulars including the name and address of the de facto guardian and the names and addresses of other suitable persons whenever a natural or de facto guardian is not permitted to act 21 admittedly the learned judge summoned the records from the trial court after entertaining a doubt about the procedure followed by the trial court in this case and found as a matter of fact that the trial court failed to appoint a guardian for the third defendant as required by order xxxii rule 3 the power of the learned judge to call for the records and examine the same in a revision under section 115 1 of the code is not and cannot be doubted or 15 questioned by the petitioners it is true that the learned judge was dealing only with a revision petition arising out of an order dismissing a petition under section 5 of the limitation act 1963 but it does not take away or curtail the jurisdiction of the high court to look into the records with particular reference to an important rule of procedure especially when the same relates to something concerning persons under disability the rigorous nature of the madras amendment to rule 3 of order xxxii is perhaps to be attributed to the wider jurisdiction that the high court exercised on its original side under clause 17 of the letters patent and the parens patriae jurisdiction that a court normally exercises while dealing with cases of minors therefore we find no illegality in the action of the high court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was appointed properly in accordance with the procedure prescribed in order xxxii rule 3 even in the absence of a specific contention being raised by the petitioners 22 the contention that in a revision arising out of the dismissal of a petition under section 5 of the limitation act 1963 the high 16 court cannot set aside the ex parte decree itself by invoking the power under article 227 does not appeal to us it is too well settled that the powers of the high court under article 227 are in addition to and wider than the powers under section 115 of the code in surya dev rai vs ram chander rai and others2 this court went as far as to hold that even certiorari under article 226 can be issued for correcting gross errors of jurisdiction of a subordinate court but the correctness of the said view in so far as it related to article 226 was doubted by another bench which resulted in a reference to a three member bench in radhey shyam anr vs chhabi nath others3 the three member bench even while overruling surya dev rai supra on the question of jurisdiction under article 226 pointed out that the jurisdiction under article 227 is distinguishable therefore we do not agree with the contention that the high court committed an error of jurisdiction in invoking article 227 and setting aside the ex parte decree 23 in fact the learned judge also went into the question whether a decree passed against a minor without proper appointment of a 2 2003 6 scc 675 3 2015 5 scc 423 17 guardian is a nullity ipso facto or whether the same would depend upon prejudice against the minor being established the learned judge found that in this case the minor was prejudiced 24 it may be of interest to note that rule 3 a was inserted in order xxxii by cpc amendment act 104 of 1976 it is this rule that introduced for the first time into the code the question of prejudice to the minor but this rule 3 a applies only to cases where the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor this amendment was a sequel to certain conflicting opinions on the question as to whether a decree passed in cases where the minor was represented by a guardian who had an interest in the subject matter of the suit adverse to that of the minor was void or voidable 25 in other words the parliament chose to introduce the element of prejudice specifically in relation to one category of cases under order xxxii rule 3a the case on hand does not fall under that category in any case we need not go into that question in this case as the learned judge found that the minor was prejudiced 18 26 a valiant attempt was made during the hearing to show that the 3rd respondent defendant was not a minor at all such a contention was sought to be raised on the basis of the long cause title in the execution application e a no 65 of 2017 where the 3rd respondent was described as a person aged about 24 years in the year 2017 therefore it was sought to be contended that he should have attained majority long before the ex parte decree and that therefore the question of appointment of a guardian and the decree becoming a nullity did not arise 27 the said contention is to be stated only to be rejected it was the petitioners herein who filed the suit in the year 2013 describing the 3rd defendant as a minor and seeking the appointment of a guardian therefore there is no place for any innovative arguments contrary to one s own pleadings 28 another contention was raised that in any event the decree could have been set aside only as against the 3rd respondent and not against all the others but the said logic does not apply to something that is a nullity in law 19 29 the reliance placed by the learned counsel for the petitioners upon the judgment of a division bench of the madras high court in lanka sanyasi vs lanka yerran naidu4 is misplaced the question in lanka sanyasi supra was whether a person who had become a major on the date on which a compromise decree was passed in a suit was entitled to challenge the compromise decree in a subsequent suit the subsequent suit was decreed by the first appellate court and while dealing with the second appeal the high court held in lanka sanyasi that a mere circumstance that a minor defendant had attained majority during the pendency of the suit but not elected to continue the defence himself and to have his guardian ad litem discharged is not sufficient to enable him to have the judgment passed in the suit declared as not binding on him nothing turned on the provisions of order xxxii rule 3 in the said case 30 the decision of the travancore cochin high court in ouseph joseph vs thoma eathamma5 relied upon by the petitioners 4 1929 law weekly 455 5 air 1956 tc 26 20 more than helping the petitioners confirms that the view taken in the impugned order is correct 31 the decision in divya dip singh and others vs ram bachan mishra and others6 concerned the question whether the appointment of a guardian for a minor under order xxxii rule 3 will take away the right of the natural guardian the answer was too obvious and the same has nothing to do with the issue on hand 32 the decision of the rajasthan high court in anandram and another vs madholal and others7 relied upon by the petitioners dealt with the question of prejudice to the minor specially in the context of the father filing a written statement on behalf of the minors and admitting receipt of part consideration in rangammal vs minor appasami8 there was a finding on fact that the minor s interests were sufficiently safeguarded in the suit therefore none of these decisions relied upon by the petitioners advance their cause 6 1997 1 scc 504 7 air 1960 raj 189 8 85 law weekly 574 21 33 therefore we find no illegality in the order of the high court warranting our interference under article 136 hence this special leave petition is dismissed j indira banerjee j v ramasubramanian new delhi july 16 2021 22 reportable in the supeme court of india civil appellate jurisdiction special leave petition c no 2492 of 2021 k p natarajan anr petitioner s versus muthalammal ors respondent s j u d g m e n t v ramasubramanian j 1 in a civil revision petition filed under section 115 of the code of civil procedure 1908 for short the code challenging an order of the trial court refusing to condone the delay of 862 days in seeking to set aside an ex parte decree for specific performance the high court found that the ex parte decree was a nullity as it was passed against a minor without the minor being represented by a guardian duly appointed in terms of the procedure contemplated 1 under order xxxii rule 3 of the code therefore the high court exercising its power of superintendence under article 227 of the constitution set aside the ex parte decree itself on condition that the petitioners before the high court defendants pay a sum of rs 2 50 000 representing the amount already spent by the decree holders in purchasing stamp paper etc aggrieved by the said order of the high court the decree holders are before us in this special leave petition 2 we have heard mr s nagamuthu learned senior counsel appearing for the petitioners plaintiffs and mr r balasubramanian learned senior counsel appearing for the respondents defendants 3 in a suit o s no 264 of 2013 filed by the petitioners herein for specific performance of an agreement of sale dated 25 04 2011 the respondents were duly served with summons but after having entered appearance through counsel they remained ex parte the trial court decreed the suit ex parte on 08 04 2015 4 at this stage it may be relevant to take note of one fact namely that the petitioners sought as an alternate relief a decree 2 for refund of the money paid with interest at 18 per annum in the event of the court not granting the relief of specific performance but the trial court held albeit without reasons that the petitioners are entitled for the primary relief of specific performance 5 in the plaint as it was filed by the petitioners herein the third defendant was described as minor s aravindarajan aged about 16 years son of sampathkumar represented by the next friend father m sampathkumar therefore the petitioners had filed along with the plaint an application in i a no 981 of 2013 under order xxxii rule 3 of the code for appointing the second respondent herein his father and the second defendant as the guardian of the minor as noted by the high court the trial court after serving notice on the second defendant passed an order in i a no 981 of 2013 on 23 03 2014 to the following effect batta served vakalat by guardian to minor filed hence this petition is closed 6 seeking execution of the decree the petitioners filed e p no 33 of 2015 notices were served on all the respondents in the execution petition and the execution petition is said to have come 3 up for hearing on two dates in december 2015 and on several dates in the year 2016 eventually the respondents were set ex parte in the execution petition on 18 10 2016 and the petition was allowed 7 thereafter the respondents filed an application in november 2016 for setting aside the ex parte order in the execution petition it was numbered only in the year 2017 as e a no 40 of 2017 8 but in the meantime the petitioners were called upon to deposit non judicial stamp papers of the value of rs 1 98 000 for the execution of the sale deed they did so and a sale deed was in fact executed by the court on 04 01 2017 9 it is only thereafter that the respondents filed an application in i a no 142 of 2017 for condonation of the delay of 862 days in seeking to set aside the ex parte decree this application filed on 19 09 2017 was dismissed by the trial court by an order dated 28 11 2017 primarily on three grounds namely i that there was no proper explanation for the delay ii that even the written statement was not filed within the time stipulated in order viii rule 7 and iii and that after allowing even the execution to proceed ex parte and after having allowed the sale deed to be 4 executed by the executing court the respondents cannot seek condonation of the huge delay 10 aggrieved by the dismissal of the petition to condone the delay in seeking to set aside the ex parte decree the respondents filed a revision petition under section 115 of the code before the high court entertaining a doubt about the appointment of a guardian for the third defendant the learned judge summoned the original records in the suit from the trial court finding that i a no 981 of 2013 filed along with the plaint for the appointment of a guardian for the third defendant was not properly dealt with and that there was no appointment of a guardian for the minor as required under order xxxii rule 3 the learned judge invoked the general power of superintendence under article 227 of the constitution and set aside the ex parte decree itself without going into the question of delay and without examining whether there was sufficient cause for condonation of delay in order to ensure that the petitioners decree holders are not poorer after a decree or because of the decree the learned judge put the respondents on condition that they should pay of rs 2 50 000 as cost to the petitioners herein on or before 5 16 10 2020 as the petitioners decree holders had already deposited stamp papers of the value of rs 1 98 000 and got the sale deed executed 11 it appears that pursuant to the aforesaid order of the high court the respondents deposited the cost of rs 2 50 000 on 12 10 2020 as a consequence the trial court appears to have taken up the suit for trial after framing issues it is stated by mr r balasubramanian learned senior counsel for the respondents that the suit now stands posted for examination of pw 1 12 the main grounds of attack to the impugned order of the high court as articulated by mr s nagamuthu learned senior counsel for the petitioners are i that the high court ought not to have set aside an ex parte decree in a revision petition arising out of an application under section 5 of the limitation act 1963 ii that the court was not even entitled to invoke equity in favour of the respondents who were grossly negligent first in defending the suit next in defending the executing proceedings and then in seeking to set aside the ex parte decree after nearly a year of seeking to set aside the ex parte order passed in the execution petition and iii 6 that it was not even one of the grounds raised or points argued by the respondents herein in their revision petition before the high court either that the procedure prescribed under order xxxii rule 3 of the code was not followed or that a grave prejudice or injustice has been caused to the defendant minor on account of the failure if any on the part of the trial court 13 mr r balasubramanian learned senior counsel appearing for the respondents contended in response that the revisional jurisdiction of the high court under article 227 are wider in nature and that when the high court finds that the trial court has not taken care of the interest of the minor who was a party to the proceeding by following the procedure prescribed by law the high court cannot shut its eyes on the basis of technicalities 14 we have carefully considered the rival contentions there is no dispute on facts and there is no escape from the conclusion that the respondents have been grossly negligent in defending the suit as well as the execution proceedings but the fact remains that while the parties can afford to remain negligent the court cannot the high court has found after summoning the records from the 7 trial court that as a matter of fact the trial court failed to appoint a guardian for the third respondent minor in a manner prescribed by law as pointed out earlier an application was in fact filed by the petitioners herein plaintiffs under order xxxii rule 3 of the code in i a no 981 of 2013 the said application was closed by the trial court by an order passed on 23 03 2014 which we have extracted elsewhere the manner in which the trial court disposed of the application under order xxxii rule 3 is without doubt improper and cannot at all be sustained especially in the teeth of the madras amendment 15 order xxxii rule 3 is found in the first schedule to the code under section 121 of the code the rules in the first schedule shall have effect as if enacted in the body of the code until annulled or altered in accordance with the provisions of part x which comprises of sections 121 to 131 the high courts are empowered under section 122 of the code to annul alter or add to all or any of the rules in the first schedule for regulating the procedure of the civil courts subject to their superintendence 8 16 in exercise of such a power the high court of judicature at madras has made rule 3 of order xxxii of the code much more elaborate than how the rule was originally framed 17 in the impugned order the learned judge has extracted order xxxii rule 3 of the code in its original form but in its application to civil courts subject to the superintendence of the madras high court order xxxii rule 31 actually reads as follows 3 qualifications to be a next friend or guardian 1 any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit provided that the interest of that person is not adverse to that of the minor and that he is not in the case of a next friend defendant or in the case of a guardian for the suit a plaintiff 2 appointed or declared guardians to be preferred and to be superseded only for reasons recorded where a minor has a guardian appointed or declared by competent authority no person other than the guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the court considers for reasons to be recorded that it is for the minor s welfare that another person be permitted to act or be appointed as the case may be 3 guardians to be appointed by court where the defendant is a minor the court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for the minor 1 the amendment was made by a notification in p dis no 256 of 1938 vide st george gazette dated 13 3 1938 unfortunately most of the bare acts published in recent times and even the 19th edition of mulla on the code of civil procedure does not make a mention of the notification number and date in so far as the madras amendment is concerned 9 3a a person appointed under sub rule 3 to be guardian for the suit for a minor shall unless his appointment is terminated by retirement removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceeding in execution of a decree 4 appointment to be on application and where necessary after notice to proposed guardian an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff the application where it is by the plaintiff shall set forth in the order of their suitability a list of persons with their full addresses for service of notice in form no 11a set forth in appendix h hereto who are competent and qualified to act as guardian for the suit for the minor defendant the court may for reasons to be recorded in any particular case exempt the applicant from furnishing the list referred to above 5 contents of affidavit in support of the application for appointment of guardian the application referred to in the above sub rule whether made by the plaintiff or on behalf of the minor defendant shall be supported by an affidavit verifying the fact that the proposed guardian has not or that no one of the proposed guardians has any interest in the matters in controversy in the suit adverse to that of the minor and that the proposed guardian or guardians are fit persons to be so appointed the affidavit shall further state according to the circumstances of each case a particulars of any existing guardian appointed or declared by competent authority b the name and address of the person if any who is the de facto guardian of the minor c the names and addresses of persons if any who in the event of either the natural or the de facto guardian or the guardian appointed or declared by competent authority not being permitted to act are by reason of relationship or interest or otherwise suitable persons to act as guardians for the minor for the suit 10 6 application for appointment of guardian to be separate from application for bringing on record the legal representatives of a deceased party an application for the appointment of a guardian for the suit of a minor shall not be combined with an application for bringing on record the legal representatives of a deceased plaintiff or defendant the applications shall be by separate petitions 7 notice of application to be given to persons interested in the minor defendant other than the proposed guardian no order shall be made on any application under sub rule 4 above except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no guardian upon notice to the father or other natural guardian of the minor or where there is no father or other natural guardian to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this sub rule the notice required by this sub rule shall be served six clear days before the day named in the notice for the hearing of the application and may be in form no 11 set forth in appendix h hereto 8 special provision to shorten delay in getting a guardian appointed where the application is by the plaintiff he shall along with his application and affidavit referred to in sub rules 4 and 5 above produce the necessary forms in duplicate filled in to the extent that is possible at that stage for the issue simultaneous of notices to two at least of the proposed guardians for the suit to be selected by the court from the list referred to in sub rule 4 above together with a duly stamped voucher indicating that the fees prescribed for service have been paid if one or more of the proposed guardians signify his or their consent to act the court shall appoint one of them and intimate the fact of such appointment to the person appointed by registered post if no one of the persons served signifies his consent to act the court shall proceed to serve simultaneously another selected two if so many there be of the persons named in the 11 list referred to in sub rule 4 above but no fresh application under sub rule 4 shall be deemed necessary the applicant shall within three days of intimation of unwillingness by the first set of proposed guardians pay the prescribed fee for service and produce the necessary forms duly filled in 9 no personal shall be appointed guardian without his consent no person shall without his consent be appointed guardian for the suit whenever an application is made proposing the name of a person as guardian for the suit a notice in form no 11 a set forth in appendix h hereto shall be served on the proposed guardian unless the applicant himself be the proposed guardian or the proposed guardian consents 10 court guardian when to be appointed how he is to be placed in funds where the court finds no person fit and willing to act as guardian for the suit the court may appoint any of its officers or a pleader of the court to be the guardian and may direct that the costs to be incurred by that officer in the performance of the duties as guardian shall be borne either by the parties or by any one or more of the parties to the suit or out of any fund in court in which the minor is interested and may give directions for the repayment or allowance of the costs as justice and the circumstances of the case may require 11 funds for a guardian other than court guardian to defend when a guardian for the suit of a minor defendant is appointed and it is made to appear to the court that the guardian is not in possession of any or sufficient funds for the conduct of the suit on behalf of the defendant and that the defendant will be prejudiced in his defence thereby the court may from time to time order the plaintiff to advance monies to the guardian for purpose of his defence and all monies so advanced shall form part of the costs of the plaintiff in the suit the order shall direct that the guardians as and when directed shall file in court an account of the monies so received by him 12 18 there is a great deal of difference between the rules of procedure laid down in rule 3 of order xxxii by the central act and rule 3 as applicable to civil courts subject to the superintendence of madras high court order xxxii rule 3 in its original form reads as follows 3 guardian for the suit to be appointed by court for minor defendant 1 where the defendant is a minor the court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for such minor 2 an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff 3 such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed 4 no order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf or where there is no such guardian upon notice to the father or where there is no father to the mother or where there is no father or mother to other natural guardian of the minor or where there is no father mother or other natural guardian to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this sub rule 4a the court may in any case if it thinks fit issue notice under sub rule 4 to the minor also 13 5 a person appointed under sub rule 1 to be guardian for the suit for a minor shall unless his appointment is terminated by retirement removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree 19 a comparison of the two sets of rules show that the rules applicable to courts subject to the superintendence of the madras high court are more elaborate and also rigorous we may immediately note i that sub rules 1 and 2 of rule 3 of the rules applicable to courts subject to the superintendence of the madras high court hereinafter referred to as applicable rules for the purpose of convenience are additional requirements ii that sub rule 3 of rule 3 of the applicable rules is a reproduction of sub rule 1 of rule 3 of the original code iii that sub rule 3 a of rule 3 of the applicable rules is a reproduction of sub rule 5 of the central act iv sub rule 7 of rule 3 of the applicable rules is an improved version of sub rule 4 of rule 3 of the central act 20 more importantly sub rules 4 5 6 and a part of sub rule 7 of rule 3 of order xxxii of the applicable rules prescribe certain additional requirements which are as follows i when an 14 application for the appointment of a guardian is by the plaintiff it shall set forth in the order of their suitability a list of persons with their full addresses for service of notice in form no 11 a set forth in appendix h who are competent and qualified to act as guardian for the minor defendant ii the application for appointment of a guardian should be supported by an affidavit not merely verifying as in the central act the fact that the proposed guardian has no interest in the matters in controversy adverse to that of the minor but also stating additional particulars including the name and address of the de facto guardian and the names and addresses of other suitable persons whenever a natural or de facto guardian is not permitted to act 21 admittedly the learned judge summoned the records from the trial court after entertaining a doubt about the procedure followed by the trial court in this case and found as a matter of fact that the trial court failed to appoint a guardian for the third defendant as required by order xxxii rule 3 the power of the learned judge to call for the records and examine the same in a revision under section 115 1 of the code is not and cannot be doubted or 15 questioned by the petitioners it is true that the learned judge was dealing only with a revision petition arising out of an order dismissing a petition under section 5 of the limitation act 1963 but it does not take away or curtail the jurisdiction of the high court to look into the records with particular reference to an important rule of procedure especially when the same relates to something concerning persons under disability the rigorous nature of the madras amendment to rule 3 of order xxxii is perhaps to be attributed to the wider jurisdiction that the high court exercised on its original side under clause 17 of the letters patent and the parens patriae jurisdiction that a court normally exercises while dealing with cases of minors therefore we find no illegality in the action of the high court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was appointed properly in accordance with the procedure prescribed in order xxxii rule 3 even in the absence of a specific contention being raised by the petitioners 22 the contention that in a revision arising out of the dismissal of a petition under section 5 of the limitation act 1963 the high 16 court cannot set aside the ex parte decree itself by invoking the power under article 227 does not appeal to us it is too well settled that the powers of the high court under article 227 are in addition to and wider than the powers under section 115 of the code in surya dev rai vs ram chander rai and others2 this court went as far as to hold that even certiorari under article 226 can be issued for correcting gross errors of jurisdiction of a subordinate court but the correctness of the said view in so far as it related to article 226 was doubted by another bench which resulted in a reference to a three member bench in radhey shyam anr vs chhabi nath others3 the three member bench even while overruling surya dev rai supra on the question of jurisdiction under article 226 pointed out that the jurisdiction under article 227 is distinguishable therefore we do not agree with the contention that the high court committed an error of jurisdiction in invoking article 227 and setting aside the ex parte decree 23 in fact the learned judge also went into the question whether a decree passed against a minor without proper appointment of a 2 2003 6 scc 675 3 2015 5 scc 423 17 guardian is a nullity ipso facto or whether the same would depend upon prejudice against the minor being established the learned judge found that in this case the minor was prejudiced 24 it may be of interest to note that rule 3 a was inserted in order xxxii by cpc amendment act 104 of 1976 it is this rule that introduced for the first time into the code the question of prejudice to the minor but this rule 3 a applies only to cases where the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor this amendment was a sequel to certain conflicting opinions on the question as to whether a decree passed in cases where the minor was represented by a guardian who had an interest in the subject matter of the suit adverse to that of the minor was void or voidable 25 in other words the parliament chose to introduce the element of prejudice specifically in relation to one category of cases under order xxxii rule 3a the case on hand does not fall under that category in any case we need not go into that question in this case as the learned judge found that the minor was prejudiced 18 26 a valiant attempt was made during the hearing to show that the 3rd respondent defendant was not a minor at all such a contention was sought to be raised on the basis of the long cause title in the execution application e a no 65 of 2017 where the 3rd respondent was described as a person aged about 24 years in the year 2017 therefore it was sought to be contended that he should have attained majority long before the ex parte decree and that therefore the question of appointment of a guardian and the decree becoming a nullity did not arise 27 the said contention is to be stated only to be rejected it was the petitioners herein who filed the suit in the year 2013 describing the 3rd defendant as a minor and seeking the appointment of a guardian therefore there is no place for any innovative arguments contrary to one s own pleadings 28 another contention was raised that in any event the decree could have been set aside only as against the 3rd respondent and not against all the others but the said logic does not apply to something that is a nullity in law 19 29 the reliance placed by the learned counsel for the petitioners upon the judgment of a division bench of the madras high court in lanka sanyasi vs lanka yerran naidu4 is misplaced the question in lanka sanyasi supra was whether a person who had become a major on the date on which a compromise decree was passed in a suit was entitled to challenge the compromise decree in a subsequent suit the subsequent suit was decreed by the first appellate court and while dealing with the second appeal the high court held in lanka sanyasi that a mere circumstance that a minor defendant had attained majority during the pendency of the suit but not elected to continue the defence himself and to have his guardian ad litem discharged is not sufficient to enable him to have the judgment passed in the suit declared as not binding on him nothing turned on the provisions of order xxxii rule 3 in the said case 30 the decision of the travancore cochin high court in ouseph joseph vs thoma eathamma5 relied upon by the petitioners 4 1929 law weekly 455 5 air 1956 tc 26 20 more than helping the petitioners confirms that the view taken in the impugned order is correct 31 the decision in divya dip singh and others vs ram bachan mishra and others6 concerned the question whether the appointment of a guardian for a minor under order xxxii rule 3 will take away the right of the natural guardian the answer was too obvious and the same has nothing to do with the issue on hand 32 the decision of the rajasthan high court in anandram and another vs madholal and others7 relied upon by the petitioners dealt with the question of prejudice to the minor specially in the context of the father filing a 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kuo u ds mĆ s ksa ds fy s eku gksxkĆa 1983 2021_c a no 002848 002848 2021 c 1 c 2a appellant shetgiri and associates vishram mahavir 2020 11 24 description of repairs 2848 of 2021 1 non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 2848 of 2021 arising out of slp c no 1837 of 2021 shubhas jain appellant s versus rajeshwari shivam ors respondent s j u d g m e n t indira banerjee j leave granted 2 this appeal is against a final judgment and order dated 24 11 2020 passed by the bombay high court disposing of the writ petition wp ld vc no 163 2020 filed by the respondent no 1 a tenant of the appellant and giving liberty to the respondent no 1 to remove an adjoining wall with the assistance of architects m s shetgiri and associates without damaging the property of the appellant 3 the appellant is the owner of the structure admeasuring 1069 sqm at vishram mahavir baug compound plot bearing cts no 792 p l lokhande marg chembur mumbai hereinafter referred to as 2 the premises in question 4 the appellant states that the premises in question is comprised of 3 three storied interlinked structures constructed by the predecessors in interest of the appellant in 1930 the first structure has 6 rooms the second structure has 10 rooms and the third structure has 9 rooms there were about 24 tenants at the premises in question including the respondent no 1 5 it is the case of the appellant that the impugned order has been passed overlooking the submission of the respondent municipal corporation with regard to the precarious condition of the premises in question the report dated 15 05 2015 of the technical advisory committee to whom the respondent municipal corporation had made a reference and the structural audit report prepared by m s manohar ashatavadhani associate opining that the building is in a critical and dangerous situation in c 1 category 6 buildings in mumbai in need of repair are classified into c1 c2 a c2 b and c3 categories having regard to their condition category c1 buildings are those which require immediate evacuation and demolition category c2 a buildings are also required to be evacuated category c 2a buildings require major structural repairs and or partial demolition c 2b buildings are repairable 3 without eviction but need structural repairs c 3 buildings do not require eviction they need only minor repairs 7 the appellant says that the petitioner has entered into arrangements with all the tenants except 6 including the respondent no 1 writ petitioner who have not agreed to vacate the premises in question all the other tenants have duly vacated 8 it is alleged that the structures at the premises in question which are in a dilapidated and dangerous condition have been declared as of the c 1 category one of the structures is of the c 2a category the appellant submits that the structures being interlinked structural repair of any one structure would affect the stability of the adjacent structure 9 m s manohar ashthavadhani and associates had prepared a structural audit report dated 25 5 2014 of the premises in question concluding in view of the facts and conditions explained above it is noticed that the structural condition of almost all buildings particularly r c c buildings is dangerous and critical the buildings are beyond economical repairs and repair is not financially viable the buildings are dangerous and unsafe to stay hence buildings will have to be vacated urgently for safety of occupants it is advised to do the propping to dangerous 4 portion of the building immediately for safety of the occupants till the buildings are vacated the owner occupants and the local authority has to take urgent decision on the action 10 on or about 19 07 2014 the respondent municipal corporation issued a notice under section 488 of the bombay municipal corporation act 1888 now known as the mumbai municipal corporation act and hereinafter referred to as the municipal corporation act for inspection of the structures at the premises in question 11 a notice under section 354 of the municipal corporation act was issued for demolition of the premises in question to safeguard human life as the building had been declared as of c 1 category 12 according to the appellant the notice under section 354 of the bombay municipal corporation act was challenged by the respondent no 1 in the city civil court bombay by filing lc suit no 702 of 2015 however by an order dated 13 3 2015 the city civil court refused to grant stay of demolition 13 on or about 08 04 2015 the respondent no 1 challenged the order of the city civil court in the high court by filing an appeal the appeal was rejected 5 14 thereafter on or about 15 05 2015 the respondent municipal corporation referred the matter before the technical advisory committee as there were contrary reports the technical advisory committee went through the different structural audit reports and thereafter opined that the building was temporarily repairable 15 the respondent no 1 and other tenants thereafter gave a certificate of stability dated 13 11 2015 by m s crown consultants stating that the structure was safe for the next five years subject to annual civil and structural maintenance work over five years have already elapsed since the date of issuance of the certificate 16 on 25 01 2019 the respondent municipal corporation issued a notice to the appellant under section 353 b of the municipal corporation act calling upon the appellant to get the building examined by a licensed structural engineer 17 on 19 02 2019 m s manohar ashtavadhani associates submitted a report stating that structure no 1 and structure no 2 were in critical and dangerous condition and fell under c 1 category and structure no 3 urgently required major repairs and was classifiable in c2 a category 6 18 on 22 04 2019 the appellant forwarded the said report to the respondent municipal corporation on 16 10 2019 the respondent no 1 and other tenants submitted the structural audit report dated 16 10 2019 issued by m s crown consultant architect to the respondent municipal corporation thereafter on 10 01 2020 the respondent municipal corporation referred the matter to the technical advisory committee in view of contradictory reports 19 the technical advisory committee conducted hearing on 19 06 2020 and found the condition of the said buildings very dangerous as the same were over 90 years old the technical advisory committee found that no civil and structural maintenance had been carried out in the last four years as advised by the consultant in his stability certificate dated 13 11 2015 therefore the structures were declared as of c 1 category 20 on 02 07 2020 the respondent municipal corporation issued a notice revoking the 50 days time earlier granted to file objection on the decision of the technical advisory committee since the technical advisory committee had declared the structure to be of c 1 category 21 on 02 02 2020 a notice under section 354 of the municipal corporation act was issued to the appellant and to the tenants 7 including the respondent no 1 directing them to vacate the buildings in question thereafter on 09 07 2020 the appellant sent letters to all the tenants including the respondent no 1 informing them of the technical advisory committee report and requesting them to vacate the premises in question the respondent no 1 however filed writ petition wp ld vc no 163 of 2020 challenging the notice issued by the respondent municipal corporation under section 354 of the municipal corporation act 22 on 29 9 2020 m s shetgiri and associates architects submitted a report to the effect that the life of the structure could be enhanced for further 5 to 6 years after repairs subject to the condition of monitoring and periodic maintenance every year 23 on 24 11 2020 a division bench of the bombay high court passed the impugned order granting liberty to the respondent no 1 to commence the work of removal of adjoining wall with the assistance of m s shetgiri and associates architects at his own risk and costs the said work was however to be carried out in the presence of the officials of corporation 24 in our considered view the high court has committed a serious error in directing removal of a wall with the assistance of m s shetgiri and associates when there were conflicting 8 reports including an earlier report of the technical advisory committee on the basis of the opinions of other architects declaring the building to be of the c 1 category 25 even the report of shetgiri and associates relied upon by the respondent no 1 provided 13 brief description of repairs to be done c external plaster external plaster structural repairs external plaster to be replaced with new plaster d structural repairs structural repairs damaged structural members like load bearing walls and its plaster brick pillars beams and slabs where ever exists should be strengthened and its repairs should be carried out immediately the said structural repairs should be carried out as per the direction and under the supervision of registered structural engineer 14 conclusions of consultants the structure has suffered damages to the external walls rcc elements at various locations 9 leakages capillary action on external wall is due to sub soil water pressure the said external walls should be repaired immediately with pcc bedding and damp proof course under it so as to protect it from sub soil action during the course of repairs propping and barricading is to be provided damaged structural members like load bearing walls and its plaster brick pillars beams and slabs where ever exists should be strengthened and its repairs should be carried out immediately the said structural repairs should be carried out as per the direction and under the supervision of registered structural engineer many of the observations mentioned above needs immediate attention any further delay even if marginal to initiate the major restoration and repair works could lead to a part or complete failure and leading to mishaps even without warning signals this could be serious fatal to both the occupants of the building structure as well as the passerbye s sic passers by in close proximity to the structure 26 it is well settled that the high court exercising its 10 extraordinary writ jurisdiction under article 226 of the constitution of india does not adjudicate hotly disputed questions of facts it is not for the high court to make a comparative assessment of conflicting technical reports and decide which one is acceptable 27 moreover the high court has overlooked the notes and limitations mentioned in the report of shetgiri and associates set out hereinbelow 1 the report is based on visual inspection done as on date of an accessible area and data provided by client and nd tests results this report serves a basis of preliminary health heck up of structure and should not be treated as stability certificate of the building 2 3 inspection of substructure was not possible and hence condition of structure below plinth cannot be commented on 4 the observations made in structural audit report are made during the time of audit we shall not be held responsible for any changes in structural condition and or damages to the structure and or overloading at any point of time in case observed 5 it is requested that the concerned authority must carry out regular maintenance of the structures sewer lines premises to avoid any further severe damage to the structure at a later stage 6 7 it is extremely important to add here that the 11 structure is almost more than 45 years old and has majorly outlived its economic life in olden days especially in 1900 s the indian standard codes were basic in nature as compared with what is adopted in the present time even if the decision of restoration is adopted uplifting the structure to an extent that it would be at part with modern structure s in terms of the strength design safety standards and also the i s codal provisions especially seismic and wind analysis would be practically ruled out and possible only if entire structural upliftment is carried out within each and every corner of the structure which is extremely difficult in case of repair works considering the massive repairs cost involved moreover the foundations of the structure cannot be restored 8 9 the report is only limited to the captioned suit building and no other flat s building structure or plot of land premises room unit site area division sub division or any other surrounding area of the plot or structure has been given any weightage or has been covered in the report 10 the documents presented before us if any are considered while furnishing the said report as mentioned however the supporting underlying documents which are not mentioned in our report and unknown to us could not be examined or analyzed as such our report is based only on the documents if any perused by us and not on any underlying supporting documents if any not produced before us 28 the high court grossly erred in law as well as facts in 12 passing the impugned judgment and order overlooking the fact that the report of shetgiri and associates was not a certificate of stability as stated in the report itself in note 1 extracted above 29 it is not understood how the high court could have been satisfied that the stability of the building could be restored by repair in the manner directed the high court patently erred in passing the impugned order the impugned order cannot be sustained 30 it is recorded that the appellant being the land lord has given a proposal to the respondent no 1 similar to the proposal offered to the other tenants the proposal as contained in annexure p 6 to the additional documents filed on behalf of the appellant which is a very reasonable proposal is extracted hereinbelow for convenience a i am the owner of the property which is subject matter of the special leave petition no 1837 of 2021 before the hon ble supreme court of india the respondent no 1 is the occupant tenant of the room no 21 admeasuring 28 sq mtr as per the area statement issued by the mcgm b now the mcgm have issued orders dated 02 07 2020 to the owner and the respondent no 1 along with all other tenants occupants in the building to vacate their houses and evict the building on the subject property 13 c as per the area certificate issued by the mcgm it has protected the area of the respondent no 1 and all other tenants d it is to be noted that out of 24 tenants 15 tenants have executed letter of consent with the petitioner owner and have already vacated their subject premises out of 24 tenants 15 tenants have entered in to mou with the petitioner for accepting the alternate accommodation and undertaking to vacate the subject premises e in view of the aforesaid respondent no 1 should immediately hand over the possession of its subject house to the petitioner so that the mcgm can demolish the subject property and petitioner can start the process of redevelopment of the subject property f i as the owner of the subject property assure and undertake as under 1 that i am accepting respondent no 1 as a legal tenant 2 i undertake that subject property will be redeveloped after all the tenants have been evicted from their rooms i undertake that i will try to complete the redevelopment work of the new building to be constructed on the subject property within 2 years from the date of receipt of the commencement certificate for redevelopment however in the event if i could not complete the project within 2 years because of the natural calamities or the reasons beyond the control of the petitioner in that event i undertake to pay rent transit accommodation as per the choice of the respondent no 1 till the project the completed and competition certificate is issued by the appropriate authority 3 i undertake that i will provide 14 monthly rent at the rate of rs 18 per sq ft x authorised legal area of the subject house of the respondent no 1 from the date of vacation of the subject house by the respondent no 1 till receipt of the completion certificate from the mcgm 4 i also undertake to provide 11 months rent in advance by post dated cheques also i undertake to provide rs 2000 towards freight in the event the respondent no 1 is not willing to take rent as offered in that event i undertake to provide alternative accommodation in the transit camp from the date of vacation of the subject house till the completion certificate issued by the appropriate authority 5 i undertake that as soon as the construction of the proposed building is completed and upon receipt of occupation certification from the appropriate authority i shall give possession of newly constructed alternate accommodation flat equivalent to the authorised legal area which mentioned in the area certificate and assessment extract in respect of subject house in the proposed building 6 i undertake that i will be providing newly constructed flat to the respondent no 1 in the newly constructed redeveloped building equivalent to the authorised legal area which mentioned in the area certificate on ownership basis and i shall not have any right over the said flat once it is handed over to the respondent no 1 7 i undertake that i will not charge any amount from the respondent no 1 towards new alternate accommodation 15 which is to be provided in the proposed building g i have already submitted the proposal before the competent authority for the redevelopment of the subject property and i am awaiting for the approval h i assure that all the permissions no objection certificates required for the new building under this redevelopment as well as all legal action will be taken by me i i assure that no legal charges stamp duty registration fee other charges will be levied to respondent no 1 for all redevelopment costs and the full cost will be borne by me j for this redevelopment the deposit amount for water tax property tax sewerage tax will be paid by me up to obtaining occupation certificate k i guarantee that i will pay extra rent for the extra time taken for redevelopment due to natural calamities strikes and other reasons 31 in terms of the aforesaid proposal the appellant is to provide area equivalent to the area now under occupation of the respondent no 1 after demolition and reconstruction of the building on ownership basis free of charges in the interregnum the appellant shall provide monthly rent rs 18 per sq mtr for area corresponding to the authorized legal area now in occupation of the respondent no 1 from the date of vacating till the date of completion certificate eleven months rent shall be given in advance by post dated cheque 16 32 in addition the appellant also undertakes to provide rs 2000 towards freight charges in the event the respondent no 1 is unwilling to accept the rent the appellant undertakes to provide alternative accommodation in a transit camp from the date of vacating of the premises in question till the issuance of completion certificate by the appropriate authority needless to mention that the appellant shall abide by the conditions of the offer if the respondent no 1 agrees to accept the same 33 the appeal is accordingly allowed for the reasons discussed above the impugned final judgment and order is set aside and the writ petition is dismissed 34 all interim orders stand vacated 35 pending applications if any stand disposed of accordingly j indira banerjee j v ramasubramanian new delhi july 20 2021 17 item no 2 court 10 video conferencing section ix s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal c no s 1837 2021 arising out of impugned final judgment and order dated 24 11 2020 in wp ld vc no 163 2020 passed by the high court of judicature at bombay shubhas jain petitioner s versus rajeshwari shivam ors respondent s ia no 14675 2021 exemption from filing affidavit ia no 13133 2021 exemption from filing c c of the impugned judgment ia no 13134 2021 exemption from filing o t ia no 14673 2021 permission to file additional documents facts annexures date 20 07 2021 these matters were called on for hearing today coram hon ble ms justice indira banerjee hon ble mr justice v ramasubramanian for petitioner s mr dilip annasaheb taur aor for respondent s mr preteesh kapur sr adv ms vishakha adv mr karthik rajshekhar adv mr atul kumar aor mr siddharth bhatnagar sr adv ms pallavi pratap adv ms aruna savla adv for m s pratap and co aor upon hearing the counsel the court made the following o r d e r 18 leave granted the appeal is allowed for the reasons discussed in the signed non reportable judgment the impugned final judgment and order is set aside and the writ petition is dismissed all interim orders stand vacated pending applications if any stand disposed of accordingly gulshan kumar arora mathew abraham ar cum ps court master nsh signed non reportable judgment is placed on the file 1 non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 2848 of 2021 arising out of slp c no 1837 of 2021 shubhas jain appellant s versus rajeshwari shivam ors respondent s j u d g m e n t indira banerjee j leave granted 2 this appeal is against a final judgment and order dated 24 11 2020 passed by the bombay high court disposing of the writ petition wp ld vc no 163 2020 filed by the respondent no 1 a tenant of the appellant and giving liberty to the respondent no 1 to remove an adjoining wall with the assistance of architects m s shetgiri and associates without damaging the property of the appellant 3 the appellant is the owner of the structure admeasuring 1069 sqm at vishram mahavir baug compound plot bearing cts no 792 p l lokhande marg chembur mumbai hereinafter referred to as 2 the premises in question 4 the appellant states that the premises in question is comprised of 3 three storied interlinked structures constructed by the predecessors in interest of the appellant in 1930 the first structure has 6 rooms the second structure has 10 rooms and the third structure has 9 rooms there were about 24 tenants at the premises in question including the respondent no 1 5 it is the case of the appellant that the impugned order has been passed overlooking the submission of the respondent municipal corporation with regard to the precarious condition of the premises in question the report dated 15 05 2015 of the technical advisory committee to whom the respondent municipal corporation had made a reference and the structural audit report prepared by m s manohar ashatavadhani associate opining that the building is in a critical and dangerous situation in c 1 category 6 buildings in mumbai in need of repair are classified into c1 c2 a c2 b and c3 categories having regard to their condition category c1 buildings are those which require immediate evacuation and demolition category c2 a buildings are also required to be evacuated category c 2a buildings require major structural repairs and or partial demolition c 2b buildings are repairable 3 without eviction but need structural repairs c 3 buildings do not require eviction they need only minor repairs 7 the appellant says that the petitioner has entered into arrangements with all the tenants except 6 including the respondent no 1 writ petitioner who have not agreed to vacate the premises in question all the other tenants have duly vacated 8 it is alleged that the structures at the premises in question which are in a dilapidated and dangerous condition have been declared as of the c 1 category one of the structures is of the c 2a category the appellant submits that the structures being interlinked structural repair of any one structure would affect the stability of the adjacent structure 9 m s manohar ashthavadhani and associates had prepared a structural audit report dated 25 5 2014 of the premises in question concluding in view of the facts and conditions explained above it is noticed that the structural condition of almost all buildings particularly r c c buildings is dangerous and critical the buildings are beyond economical repairs and repair is not financially viable the buildings are dangerous and unsafe to stay hence buildings will have to be vacated urgently for safety of occupants it is advised to do the propping to dangerous 4 portion of the building immediately for safety of the occupants till the buildings are vacated the owner occupants and the local authority has to take urgent decision on the action 10 on or about 19 07 2014 the respondent municipal corporation issued a notice under section 488 of the bombay municipal corporation act 1888 now known as the mumbai municipal corporation act and hereinafter referred to as the municipal corporation act for inspection of the structures at the premises in question 11 a notice under section 354 of the municipal corporation act was issued for demolition of the premises in question to safeguard human life as the building had been declared as of c 1 category 12 according to the appellant the notice under section 354 of the bombay municipal corporation act was challenged by the respondent no 1 in the city civil court bombay by filing lc suit no 702 of 2015 however by an order dated 13 3 2015 the city civil court refused to grant stay of demolition 13 on or about 08 04 2015 the respondent no 1 challenged the order of the city civil court in the high court by filing an appeal the appeal was rejected 5 14 thereafter on or about 15 05 2015 the respondent municipal corporation referred the matter before the technical advisory committee as there were contrary reports the technical advisory committee went through the different structural audit reports and thereafter opined that the building was temporarily repairable 15 the respondent no 1 and other tenants thereafter gave a certificate of stability dated 13 11 2015 by m s crown consultants stating that the structure was safe for the next five years subject to annual civil and structural maintenance work over five years have already elapsed since the date of issuance of the certificate 16 on 25 01 2019 the respondent municipal corporation issued a notice to the appellant under section 353 b of the municipal corporation act calling upon the appellant to get the building examined by a licensed structural engineer 17 on 19 02 2019 m s manohar ashtavadhani associates submitted a report stating that structure no 1 and structure no 2 were in critical and dangerous condition and fell under c 1 category and structure no 3 urgently required major repairs and was classifiable in c2 a category 6 18 on 22 04 2019 the appellant forwarded the said report to the respondent municipal corporation on 16 10 2019 the respondent no 1 and other tenants submitted the structural audit report dated 16 10 2019 issued by m s crown consultant architect to the respondent municipal corporation thereafter on 10 01 2020 the respondent municipal corporation referred the matter to the technical advisory committee in view of contradictory reports 19 the technical advisory committee conducted hearing on 19 06 2020 and found the condition of the said buildings very dangerous as the same were over 90 years old the technical advisory committee found that no civil and structural maintenance had been carried out in the last four years as advised by the consultant in his stability certificate dated 13 11 2015 therefore the structures were declared as of c 1 category 20 on 02 07 2020 the respondent municipal corporation issued a notice revoking the 50 days time earlier granted to file objection on the decision of the technical advisory committee since the technical advisory committee had declared the structure to be of c 1 category 21 on 02 02 2020 a notice under section 354 of the municipal corporation act was issued to the appellant and to the tenants 7 including the respondent no 1 directing them to vacate the buildings in question thereafter on 09 07 2020 the appellant sent letters to all the tenants including the respondent no 1 informing them of the technical advisory committee report and requesting them to vacate the premises in question the respondent no 1 however filed writ petition wp ld vc no 163 of 2020 challenging the notice issued by the respondent municipal corporation under section 354 of the municipal corporation act 22 on 29 9 2020 m s shetgiri and associates architects submitted a report to the effect that the life of the structure could be enhanced for further 5 to 6 years after repairs subject to the condition of monitoring and periodic maintenance every year 23 on 24 11 2020 a division bench of the bombay high court passed the impugned order granting liberty to the respondent no 1 to commence the work of removal of adjoining wall with the assistance of m s shetgiri and associates architects at his own risk and costs the said work was however to be carried out in the presence of the officials of corporation 24 in our considered view the high court has committed a serious error in directing removal of a wall with the assistance of m s shetgiri and associates when there were conflicting 8 reports including an earlier report of the technical advisory committee on the basis of the opinions of other architects declaring the building to be of the c 1 category 25 even the report of shetgiri and associates relied upon by the respondent no 1 provided 13 brief description of repairs to be done c external plaster external plaster structural repairs external plaster to be replaced with new plaster d structural repairs structural repairs damaged structural members like load bearing walls and its plaster brick pillars beams and slabs where ever exists should be strengthened and its repairs should be carried out immediately the said structural repairs should be carried out as per the direction and under the supervision of registered structural engineer 14 conclusions of consultants the structure has suffered damages to the external walls rcc elements at various locations 9 leakages capillary action on external wall is due to sub soil water pressure the said external walls should be repaired immediately with pcc bedding and damp proof course under it so as to protect it from sub soil action during the course of repairs propping and barricading is to be provided damaged structural members like load bearing walls and its plaster brick pillars beams and slabs where ever exists should be strengthened and its repairs should be carried out immediately the said structural repairs should be carried out as per the direction and under the supervision of registered structural engineer many of the observations mentioned above needs immediate attention any further delay even if marginal to initiate the major restoration and repair works could lead to a part or complete failure and leading to mishaps even without warning signals this could be serious fatal to both the occupants of the building structure as well as the passerbye s sic passers by in close proximity to the structure 26 it is well settled that the high court exercising its 10 extraordinary writ jurisdiction under article 226 of the constitution of india does not adjudicate hotly disputed questions of facts it is not for the high court to make a comparative assessment of conflicting technical reports and decide which one is acceptable 27 moreover the high court has overlooked the notes and limitations mentioned in the report of shetgiri and associates set out hereinbelow 1 the report is based on visual inspection done as on date of an accessible area and data provided by client and nd tests results this report serves a basis of preliminary health heck up of structure and should not be treated as stability certificate of the building 2 3 inspection of substructure was not possible and hence condition of structure below plinth cannot be commented on 4 the observations made in structural audit report are made during the time of audit we shall not be held responsible for any changes in structural condition and or damages to the structure and or overloading at any point of time in case observed 5 it is requested that the concerned authority must carry out regular maintenance of the structures sewer lines premises to avoid any further severe damage to the structure at a later stage 6 7 it is extremely important to add here that the 11 structure is almost more than 45 years old and has majorly outlived its economic life in olden days especially in 1900 s the indian standard codes were basic in nature as compared with what is adopted in the present time even if the decision of restoration is adopted uplifting the structure to an extent that it would be at part with modern structure s in terms of the strength design safety standards and also the i s codal provisions especially seismic and wind analysis would be practically ruled out and possible only if entire structural upliftment is carried out within each and every corner of the structure which is extremely difficult in case of repair works considering the massive repairs cost involved moreover the foundations of the structure cannot be restored 8 9 the report is only limited to the captioned suit building and no other flat s building structure or plot of land premises room unit site area division sub division or any other surrounding area of the plot or structure has been given any weightage or has been covered in the report 10 the documents presented before us if any are considered while furnishing the said report as mentioned however the supporting underlying documents which are not mentioned in our report and unknown to us could not be examined or analyzed as such our report is based only on the documents if any perused by us and not on any underlying supporting documents if any not produced before us 28 the high court grossly erred in law as well as facts in 12 passing the impugned judgment and order overlooking the fact that the report of shetgiri and associates was not a certificate of stability as stated in the report itself in note 1 extracted above 29 it is not understood how the high court could have been satisfied that the stability of the building could be restored by repair in the manner directed the high court patently erred in passing the impugned order the impugned order cannot be sustained 30 it is recorded that the appellant being the land lord has given a proposal to the respondent no 1 similar to the proposal offered to the other tenants the proposal as contained in annexure p 6 to the additional documents filed on behalf of the appellant which is a very reasonable proposal is extracted hereinbelow for convenience a i am the owner of the property which is subject matter of the special leave petition no 1837 of 2021 before the hon ble supreme court of india the respondent no 1 is the occupant tenant of the room no 21 admeasuring 28 sq mtr as per the area statement issued by the mcgm b now the mcgm have issued orders dated 02 07 2020 to the owner and the respondent no 1 along with all other tenants occupants in the building to vacate their houses and evict the building on the subject property 13 c as per the area certificate issued by the mcgm it has protected the area of the respondent no 1 and all other tenants d it is to be noted that out of 24 tenants 15 tenants have executed letter of consent with the petitioner owner and have already vacated their subject premises out of 24 tenants 15 tenants have entered in to mou with the petitioner for accepting the alternate accommodation and undertaking to vacate the subject premises e in view of the aforesaid respondent no 1 should immediately hand over the possession of its subject house to the petitioner so that the mcgm can demolish the subject property and petitioner can start the process of redevelopment of the subject property f i as the owner of the subject property assure and undertake as under 1 that i am accepting respondent no 1 as a legal tenant 2 i undertake that subject property will be redeveloped after all the tenants have been evicted from their rooms i undertake that i will try to complete the redevelopment work of the new building to be constructed on the subject property within 2 years from the date of receipt of the commencement certificate for redevelopment however in the event if i could not complete the project within 2 years because of the natural calamities or the reasons beyond the control of the petitioner in that event i undertake to pay rent transit accommodation as per the choice of the respondent no 1 till the project the completed and competition certificate is issued by the appropriate authority 3 i undertake that i will provide 14 monthly rent at the rate of rs 18 per sq ft x authorised legal area of the subject house of the respondent no 1 from the date of vacation of the subject house by the respondent no 1 till receipt of the completion certificate from the mcgm 4 i also undertake to provide 11 months rent in advance by post dated cheques also i undertake to provide rs 2000 towards freight in the event the respondent no 1 is not willing to take rent as offered in that event i undertake to provide alternative accommodation in the transit camp from the date of vacation of the subject house till the completion certificate issued by the appropriate authority 5 i undertake that as soon as the construction of the proposed building is completed and upon receipt of occupation certification from the appropriate authority i shall give possession of newly constructed alternate accommodation flat equivalent to the authorised legal area which mentioned in the area certificate and assessment extract in respect of subject house in the proposed building 6 i undertake that i will be providing newly constructed flat to the respondent no 1 in the newly constructed redeveloped building equivalent to the authorised legal area which mentioned in the area certificate on ownership basis and i shall not have any right over the said flat once it is handed over to the respondent no 1 7 i undertake that i will not charge any amount from the respondent no 1 towards new alternate accommodation 15 which is to be provided in the proposed building g i have already submitted the proposal before the competent authority for the redevelopment of the subject property and i am awaiting for the approval h i assure that all the permissions no objection certificates required for the new building under this redevelopment as well as all legal action will be taken by me i i assure that no legal charges stamp duty registration fee other charges will be levied to respondent no 1 for all redevelopment costs and the full cost will be borne by me j for this redevelopment the deposit amount for water tax property tax sewerage tax will be paid by me up to obtaining occupation certificate k i guarantee that i will pay extra rent for the extra time taken for redevelopment due to natural calamities strikes and other reasons 31 in terms of the aforesaid proposal the appellant is to provide area equivalent to the area now under occupation of the respondent no 1 after demolition and reconstruction of the building on ownership basis free of charges in the interregnum the appellant shall provide monthly rent rs 18 per sq mtr for area corresponding to the authorized legal area now in occupation of the respondent no 1 from the date of vacating till the date of completion certificate eleven months rent shall be given in advance by post dated cheque 16 32 in addition the appellant also undertakes to provide rs 2000 towards freight charges in the event the respondent no 1 is unwilling to accept the rent the appellant undertakes to provide alternative accommodation in a transit camp from the date of vacating of the premises in question till the issuance of completion certificate by the appropriate authority needless to mention that the appellant shall abide by the conditions of the offer if the respondent no 1 agrees to accept the same 33 the appeal is accordingly allowed for the reasons discussed above the impugned final judgment and order is set aside and the writ petition is dismissed 34 all interim orders stand vacated 35 pending applications if any stand disposed of accordingly j indira banerjee j v ramasubramanian new delhi july 20 2021 17 item no 2 court 10 video conferencing section ix s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal c no s 1837 2021 arising out of impugned final judgment and order dated 24 11 2020 in wp ld vc no 163 2020 passed by the high court of judicature at bombay shubhas jain petitioner s versus rajeshwari shivam ors respondent s ia no 14675 2021 exemption from filing affidavit ia no 13133 2021 exemption from filing c c of the impugned judgment ia no 13134 2021 exemption from filing o t ia no 14673 2021 permission to file additional documents facts annexures date 20 07 2021 these matters were called on for hearing today coram hon ble ms justice indira banerjee hon ble mr justice v ramasubramanian for petitioner s mr dilip annasaheb taur aor for respondent s mr preteesh kapur sr adv ms vishakha adv mr karthik rajshekhar adv mr atul kumar aor mr siddharth bhatnagar sr adv ms pallavi pratap adv ms aruna savla adv for m s pratap and co aor upon hearing the counsel the court made the following o r d e r 18 leave granted the appeal is allowed for the reasons discussed in the signed non reportable judgment the impugned final judgment and order is set aside and the writ petition is dismissed all interim orders stand vacated pending applications if any stand disposed of accordingly gulshan kumar arora mathew abraham ar cum ps court master nsh signed non reportable judgment is placed on the file 2095 2021_c a no 000720 000720 2021 karajkheda district osmanabad 2021 01 20 including amended section 35 1a which reads thus 35 1a in respect of the panchayat to which the sarpanch is directly elected under section 30a 1a the provisions of this section shall apply 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no of 2021 arising out of slp c no 1727 of 2021 subhash ors appellant s versus surekha hanumant bankar ors respondent s o r d e r leave granted this appeal takes exception to the judgment and order dated 20 01 2021 passed by the high court of judicature of bombay bench at aurangabad in writ petition no 238 of 2021 allowing the writ petition filed by the respondent no 1 the respondent no 1 was directly elected as a sarpanch of the village karajkheda taluk and district osmanabad by the public in general election of the gram panchayat held on 17 10 2017 because of his acts of commission and omission the members of the gram panchayat moved resolution expressing no confidence against respondent no 1 that resolution was passed by 2 requisite majority on 19 10 2020 against that resolution the respondent no 1 carried the matter before the collector who in turn vide order dated 31 12 2020 issued the following directions 1 a special gram sabha of the gram panchayat should be held by secret ballot decision be taken on the no confidence motion passed against the sarpanch of karajkheda taluka osmanabad on 19 10 2020 in this gram sabha the only issue will be to approve the no confidence motion passed against the sarpanch 2 group development officer class 1 panchayat samiti osmanabad is appointed as the presiding officer of this special gram sabha 3 as per the relevant acts rules and provisions in the letter of the government the group development officer class 1 panchayat samiti osmanabad should complete the procedure for holding the special gram sabha and submit the compliance report to this office 4 the decision should be communicated to all concerned and the file should be submitted in the record archive room against the said decision the matter was taken before the high court by respondent no 1 by way of writ petition c no 238 of 2021 the learned single judge of the high court allowed that writ petition in terms of prayer clause b the effect of the order passed by the high court was to not only set aside the order passed by the collector dated 31 12 2020 but also resolution dated 19 10 2020 3 being aggrieved by this decision the appellants have approached this court by way of present appeal according to the appellants the high court ought not to have set aside the resolution passed by the gram panchayat at best it ought to have directed to take follow up steps as required in terms of the decision of the collector in that as held by the collector no confidence motion was required to be ratified by the special gram sabha conducted in the village in the presence of an independent officer appointed by the collector learned counsel for the respondent no 1 would however submit that the resolution was moved on 19 10 2020 and as per the guidelines issued by the rural development department government of maharashtra dated 20 10 2020 the resolution was required to be placed for consideration before the special gram sabha at least within 10 days from the date of collector s order and since that period has expired long back the process cannot be continued further and for which reason no interference is warranted with the conclusion reached by the high court heard learned counsel for the parties 4 from the indisputable facts it is obvious that the direction issued by the collector in terms of order dated 31 12 2020 is in conformity with the relevant provisions of the village panchayat act including amended section 35 1a which reads thus 35 1a in respect of the panchayat to which the sarpanch is directly elected under section 30a 1a the provisions of this section shall apply with the following modifications a in sub section 1 for the words one third the words two third shall be substituted b in sub section 3 for the portion beginning with the words if the motion and ending with the words against the sarpanch the following portion shall be substituted namely if the motion of no confidence is carried by a majority of not less than three fourth of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat the sarpanch or the upa sarpanch as the case may be and ratified before the special gram sabha by the secret ballot in the present and under the chairmanship of the officer appointed for the purpose by the collector shall forthwith stop exercising all the powers and performing all the functions and duties of the office and thereupon such powers functions and duties shall vest in the upa sarpanch c for the fourth proviso the following provisos shall be substituted namely provided also that no such motion of no confidence shall be brought within a period of two years from the date of election of sarpanch or upa sarpanch and before the six months preceding the date on which the term of panchayat expires provided also that if the no confidence motion fails then no motion shall be 5 brought before the passage of time of next two years learned counsel for the respondent no 1 is unable to point out any provision in the act which postulates that if the proposed resolution is not placed before the gram sabha within specified time the same would lapse in law thus in absence of such a provision it cannot be assumed that the resolution had lapsed in law merely because of some direction issued by the concerned department of government of maharashtra in the present case the no confidence resolution was challenged by the respondent no 1 before the collector before the process of ratification could be taken forward by the collector after the decision of the collector the matter travelled to the high court once again at the instance of the respondent no 1 and finally before this court the respondent no 1 cannot be allowed to take advantage of that situation by placing reliance on administrative instructions dated 31 12 2020 it necessarily follows that no confidence motion passed on 19 10 2020 and confirmed by the collector vide order dated 31 12 2020 needs to be taken forward in accordance with law for that the special gram sabha will have to be convened 6 forthwith for considering ratification of the no confidence motion passed on 19 10 2020 accordingly the impugned judgment and order passed by the high court is set aside and the parties are relegated to the position stated in the order passed by the collector for complying with the necessary formalities regarding ratification of the resolution passed on 19 10 2020 the collector shall do the needful expeditiously as per the statutory scheme and the period specified therein until such time the post of sarpanch be held by the upasarpanch or such other order to be passed by the collector as per law the appeal is disposed of in the above terms pending applications if any stand disposed of j a m khanwilkar j dinesh maheshwari new delhi february 26 2021 7 item no 8 court 5 video conferencing section ix s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal c no s 1727 2021 arising out of impugned final judgment and order dated 20 01 2021 in wp no 238 2021 passed by the high court of judicature at bombay at aurangabad subhash ors petitioner s versus surekha hanumant bankar ors respondent s for admission and i r and ia no 12413 2021 exemption from filing c c of the impugned judgment and ia no 12411 2021 exemption from filing o t and ia no 12412 2021 exemption from filing affidavit date 26 02 2021 this petition was called on for hearing today coram hon ble mr justice a m khanwilkar hon ble mr justice dinesh maheshwari for petitioner s mr pravin v mandlik sr adv mr shirish k deshpande aor ms rucha pravin mandlik adv for respondent s mr shashibhushan p adgaonkar aor mr rana sandeep bussa adv mr gagandeep sharma adv upon hearing the counsel the court made the following o r d e r leave granted the appeal is disposed of in terms of the signed order pending applications if any stand disposed of deepak singh vidya negi court master sh court master nsh signed order is placed on the file 8 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no of 2021 arising out of slp c no 1727 of 2021 subhash ors appellant s versus surekha hanumant bankar ors respondent s o r d e r leave granted this appeal takes exception to the judgment and order dated 20 01 2021 passed by the high court of judicature of bombay bench at aurangabad in writ petition no 238 of 2021 allowing the writ petition filed by the respondent no 1 the respondent no 1 was directly elected as a sarpanch of the village karajkheda taluk and district osmanabad by the public in general election of the gram panchayat held on 17 10 2017 because of his acts of commission and omission the members of the gram panchayat moved resolution expressing no confidence against respondent no 1 that resolution was passed by 2 requisite majority on 19 10 2020 against that resolution the respondent no 1 carried the matter before the collector who in turn vide order dated 31 12 2020 issued the following directions 1 a special gram sabha of the gram panchayat should be held by secret ballot decision be taken on the no confidence motion passed against the sarpanch of karajkheda taluka osmanabad on 19 10 2020 in this gram sabha the only issue will be to approve the no confidence motion passed against the sarpanch 2 group development officer class 1 panchayat samiti osmanabad is appointed as the presiding officer of this special gram sabha 3 as per the relevant acts rules and provisions in the letter of the government the group development officer class 1 panchayat samiti osmanabad should complete the procedure for holding the special gram sabha and submit the compliance report to this office 4 the decision should be communicated to all concerned and the file should be submitted in the record archive room against the said decision the matter was taken before the high court by respondent no 1 by way of writ petition c no 238 of 2021 the learned single judge of the high court allowed that writ petition in terms of prayer clause b the effect of the order passed by the high court was to not only set aside the order passed by the collector dated 31 12 2020 but also resolution dated 19 10 2020 3 being aggrieved by this decision the appellants have approached this court by way of present appeal according to the appellants the high court ought not to have set aside the resolution passed by the gram panchayat at best it ought to have directed to take follow up steps as required in terms of the decision of the collector in that as held by the collector no confidence motion was required to be ratified by the special gram sabha conducted in the village in the presence of an independent officer appointed by the collector learned counsel for the respondent no 1 would however submit that the resolution was moved on 19 10 2020 and as per the guidelines issued by the rural development department government of maharashtra dated 20 10 2020 the resolution was required to be placed for consideration before the special gram sabha at least within 10 days from the date of collector s order and since that period has expired long back the process cannot be continued further and for which reason no interference is warranted with the conclusion reached by the high court heard learned counsel for the parties 4 from the indisputable facts it is obvious that the direction issued by the collector in terms of order dated 31 12 2020 is in conformity with the relevant provisions of the village panchayat act including amended section 35 1a which reads thus 35 1a in respect of the panchayat to which the sarpanch is directly elected under section 30a 1a the provisions of this section shall apply with the following modifications a in sub section 1 for the words one third the words two third shall be substituted b in sub section 3 for the portion beginning with the words if the motion and ending with the words against the sarpanch the following portion shall be substituted namely if the motion of no confidence is carried by a majority of not less than three fourth of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat the sarpanch or the upa sarpanch as the case may be and ratified before the special gram sabha by the secret ballot in the present and under the chairmanship of the officer appointed for the purpose by the collector shall forthwith stop exercising all the powers and performing all the functions and duties of the office and thereupon such powers functions and duties shall vest in the upa sarpanch c for the fourth proviso the following provisos shall be substituted namely provided also that no such motion of no confidence shall be brought within a period of two years from the date of election of sarpanch or upa sarpanch and before the six months preceding the date on which the term of panchayat expires provided also that if the no confidence motion fails then no motion shall be 5 brought before the passage of time of next two years learned counsel for the respondent no 1 is unable to point out any provision in the act which postulates that if the proposed resolution is not placed before the gram sabha within specified time the same would lapse in law thus in absence of such a provision it cannot be assumed that the resolution had lapsed in law merely because of some direction issued by the concerned department of government of maharashtra in the present case the no confidence resolution was challenged by the respondent no 1 before the collector before the process of ratification could be taken forward by the collector after the decision of the collector the matter travelled to the high court once again at the instance of the respondent no 1 and finally before this court the respondent no 1 cannot be allowed to take advantage of that situation by placing reliance on administrative instructions dated 31 12 2020 it necessarily follows that no confidence motion passed on 19 10 2020 and confirmed by the collector vide order dated 31 12 2020 needs to be taken forward in accordance with law for that the special gram sabha will have to be convened 6 forthwith for considering ratification of the no confidence motion passed on 19 10 2020 accordingly the impugned judgment and order passed by the high court is set aside and the parties are relegated to the position stated in the order passed by the collector for complying with the necessary formalities regarding ratification of the resolution passed on 19 10 2020 the collector shall do the needful expeditiously as per the statutory scheme and the period specified therein until such time the post of sarpanch be held by the upasarpanch or such other order to be passed by the collector as per law the appeal is disposed of in the above terms pending applications if any stand disposed of j a m khanwilkar j dinesh maheshwari new delhi february 26 2021 7 item no 8 court 5 video conferencing section ix s u p r e m e c o u r t o f i n d i a record of proceedings petition s for special leave to appeal c no s 1727 2021 arising out of impugned final judgment and order dated 20 01 2021 in wp no 238 2021 passed by the high court of judicature at bombay at aurangabad subhash ors petitioner s versus surekha hanumant bankar ors respondent s for admission and i r and ia no 12413 2021 exemption from filing c c of the impugned judgment and ia no 12411 2021 exemption from filing o t and ia no 12412 2021 exemption from filing affidavit date 26 02 2021 this petition was called on for hearing today coram hon ble mr justice a m khanwilkar hon ble mr justice dinesh maheshwari for petitioner s mr pravin v mandlik sr adv mr shirish k deshpande aor ms rucha pravin mandlik adv for respondent s mr shashibhushan p adgaonkar aor mr rana sandeep bussa adv mr gagandeep sharma adv upon hearing the counsel the court made the following o r d e r leave granted the appeal is disposed of in terms of the signed order pending applications if any stand disposed of deepak singh vidya negi court master sh court master nsh signed order is placed on the file 8 2113 2007_c a no 010197 010197 2010 2006 11 08 facts leading rise to the present appeal are that the plaintiff was the owner of 20 gunthas of agricultural land1 situated in village khunte the plaintiff was in need of money so he borrowed rs 3 000 from defendant no 1 on 22 2 1969 by executing a 1 for short the suit land 1 document titled conditional sale deed as a security for the loan amount the plaintiff requested defendant no 1 to reconvey the suit land by accepting the loan amount of rs 3 000 but defendant no 1 refused to do so on 25 2 1989 defendant no 1 transferred the suit land in favour of his brother defendant no 2 the plaintiff filed a suit against the defendants on 5 4 1989 under the transfer of property act 18822 for redemption of mortgaged property and possession the claim of the plaintiff is that the transaction dated 22 2 1969 was in the nature of mortgage even though it was titled as the conditional sale 3 the entire dispute revolves around whether the document dated 22 2 1969 is a document o 0197 of 2010 jha v sheikh 1954 sc 345 joshi v shri 1960 sc 301 bapuswami v n 1966 sc 902 anr v nilkanth ors v chandrika anr v vamanrao ors v digambarrao lr v shankarrao ors v rajaram lr v syed reportable in the supreme court of india civil appellate jurisdiction civil appeal no 10197 of 2010 bhimrao ramchandra khalate deceased through lrs appellant s versus nana dinkar yadav tanpura anr respondent s j u d g m e n t hemant gupta j 1 the plaintiff is in appeal before this court aggrieved against the judgment passed by the high court on 11 8 2006 in second appeal whereby the order passed by the first appellate court on 14 1 2000 was affirmed while dismissing the suit for redemption of the mortgage property 2 brief facts leading rise to the present appeal are that the plaintiff was the owner of 20 gunthas of agricultural land1 situated in village khunte the plaintiff was in need of money so he borrowed rs 3 000 from defendant no 1 on 22 2 1969 by executing a 1 for short the suit land 1 document titled conditional sale deed as a security for the loan amount the plaintiff requested defendant no 1 to reconvey the suit land by accepting the loan amount of rs 3 000 but defendant no 1 refused to do so on 25 2 1989 defendant no 1 transferred the suit land in favour of his brother defendant no 2 the plaintiff filed a suit against the defendants on 5 4 1989 under the transfer of property act 18822 for redemption of mortgaged property and possession the claim of the plaintiff is that the transaction dated 22 2 1969 was in the nature of mortgage even though it was titled as the conditional sale 3 the entire dispute revolves around whether the document dated 22 2 1969 is a document of conditional sale or a mortgage 4 before we advert to the nature and terms of the document certain principles of law need to be stated section 58 c of the act was amended in the year 1929 when a proviso was inserted that provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale 5 in pandit chunchun jha v sheikh ebadat ali anr 3 the plaintiff s suit for redemption was dismissed by the high court but appeal allowed by this court reading the deed as mortgage the question examined was whether a given transaction is a mortgage 2 for short the act 3 air 1954 sc 345 2 by conditional sale or a sale outright with a condition of repurchase it was held that two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another each must be decided on its own facts but certain broad principles were stated the court found that the document had no clause for retransfer and instead says clause 6 that if the executants pay the money within two years the property shall come in exclusive possession and occupation with the transferors the document had no clause for retransfer in these circumstances this court held as under 12 the next step is to see whether the document is covered by section 58 c of the transfer of property act for if it is not then it cannot be a mortgage by conditional sale the first point there is to see whether there is an ostensible sale that means a transaction which takes the outward form of a sale for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached the executants clearly purported to sell the property in clause 5 because they say so therefore if the transaction is not in substance a mortgage it is unquestionably a sale an actual sale and not merely an ostensible one but if it is a mortgage then the condition about an ostensible sale is fulfilled 13 we next turn to the conditions the ones relevant to the present purpose are contained in clauses 6 and 7 both are ambiguous but we have already said that on a fair construction clause 6 means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in 3 them will continue to reside there the necessary consequence of that is that the ostensible sale becomes void similarly clause 7 though clumsily worded can only mean that if the money is not paid then the sale shall become absolute those are not the actual words used but in our opinion that is a fair construction of their meaning when the document is read as a whole if that is what they mean as we hold they do then the matter falls squarely within the ambit of section 58 c 20 it is true this can also be read the other way but considering these very drastic provisions as also the threat of a criminal prosecution in sub clause a we think the transferee was out to exact more than his pound of flesh from the unfortunate rustices with whom he was dealing and that he would not have agreed to account for the profits indeed that is his own case for he says that this was a sale out and out in these circumstances there would be no need to keep a reasonable margin between the debt and the value of the property as it ordinarily done in the case of a mortgage taking everything into consideration we are of opinion that the deed is a mortgage by conditional sale under section 58 c of the transfer of property act 6 in a judgment reported as shri bhaskar waman joshi v shri narayan rambilas agarwal4 a bench of this court has upheld the right of redemption the argument raised by the transferor was that the property transferred was intended to be mortgage under a deed of conditional sale the transferees contended that the deed was absolute sale and that the conveyance was subject to a condition of repurchase it was inter alia held that a transac tion shall not be deemed to be a mortgage unless the condition re ferred to in the clause is embodied in the document which affects 4 air 1960 sc 301 4 or purports to affect the sale it was held that the mortgage by conditional sale postulates the creation by the transfer of a rela tion of mortgagor and mortgagee the price being charged on the property conveyed the court held as under 7 the question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances the circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account but the value to be attached thereto must vary with the degree of formality attending upon the transaction the definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee the price being charged on the property conveyed in a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer the property within the period specified what distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt the form in which the deed is clothed is not decisive the definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property the question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances if the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect it there is ambiguity in the language employed the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given evidence of contemporaneous 5 conduct is always admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is inadmissible xx xx xx 13 counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a sale but as already observed that evidence is inadmissible 7 in another judgment reported as p l bapuswami v n pattay gounder5 this court decreed the suit for redemption though the same was dismissed by the high court the high court held that the transaction was an outright sale and not a mortgage by condi tional sale the alternative plea based on the covenant for re con veyance the high court considered that there was no proof that the plaintiff had tendered the amount within the period stipulated in the document in appeal this court held that the distinction be tween the conditional sale and mortgage is the relationship of debtor and creditor and the transfer being a security for the debt the court held as under 5 the definition of a mortgage by conditional sale pos tulates the creation by the transfer of a relation of mort gagor and mortgagee the price being charged on the prop erty conveyed in a sale coupled with an agreement to re convey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer property within the pe riod specified the distinction between the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt the form in which the deed is 5 air 1966 sc 902 6 clothed is not decisive the question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the of document viewed in the light of surrounding circumstances if the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect if there is ambiguity in the language employed the inten tion may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts 8 in view of the judgments referred to above now we examine the facts of present case the deed in question is ex 68 the docu ment reads as under i above executant given in writing that i am executing this conditional sale deed in your favour in front of sub reg istrar phaltan as i am taking rs 3 000 three thousand in cash from you for my household expenses in respect of land which is in my possession owned by me and enjoyed by me absolutely on this date the description of the land located within limits of town khunte division satara tq phaltan ir rigated by government canal its boundaries and other particulars are xx xx xx the above land owned and enjoyed by me along with all materials standing on it including trees stones mud etc is being handed over to you by me for your possession on the condition that you are giving back its possession to me any time within one year from t he date of this sale deed when i repay the above amount to you while re transferring the above land to my name in case non payment by me of the said amount within the stipulated period this sale deed will be taken as a permanent one and you will enjoy the posses sion of the land as your own any future disputes in respect of the said land will be dealt by me if they arise i sign this sale deed today on 22nd february 1969 7 9 a perusal of the aforesaid document would show that i the plaintiff has borrowed a sum of rs 3 000 from the de fendant for his household expenses in respect of the land which was in his possession ii the possession of land was handed over to the defendant on the condition that the possession will be given back to him within one year from the date of conditional sale deed iii the defendant is bound to retransfer the land to the plaintiff when he repays the amount of rs 3 000 iv if the amount is not paid within the stipulated period the conditional sale deed may be taken as a permanent one 10 a complete reading of the document would show that a sum of rs 3 000 was taken as a loan from the defendant for household expenses the same was to be returned and the defendant was bound to retransfer the land the condition that if the plaintiff is not able to pay the loan amount within one year the document will be taken as a permanent sale deed is the contentious clause between the parties 11 in view of the judgments mentioned above the intention of the parties has to be seen when the document is executed it is not in dispute that the condition of retransfer is a part of the same docu ment ex 68 such is the condition inserted by an amendment in the year 1929 expressed by the proviso of section 58 c of the act as held in pandit chunchun jha a transaction which takes the 8 outward form of a sale but in essence the documents are of a mortgage though it is couched in the form of a sale this court held that it is impossible to compare one case with another each case must be decided on its own facts and circumstances the document has to read as a whole and if any word is ambiguous then to find out the intention of the parties when such document was executed 12 therefore a reading of the document would show that the docu ment was executed for the reason that the plaintiff has borrowed a sum of rs 3 000 for his household expenses and the defendant is bound to retransfer the land if the amount is paid within one year the advance of loan and return thereof are part of the same docu ment which creates a relationship of debtor and creditor thus it would be covered by proviso in section 58 c of the act now some of the later judgments of this court interpreting the proviso in section 58 c of the act need to be considered 13 this court in umabai anr v nilkanth dhondiba chavan dead by lrs anr 6 was examining contemporaneous docu ments executed on 30 12 1970 whereby the plaintiff had agreed to sell the property for consideration of rs 45 000 a sale deed was executed as well another agreement to sale was executed be tween the parties on the same date where the defendants agreed to reconvey the property on receipt of rs 45 000 it was thus 6 2005 6 scc 243 9 held that the benefit of section 58 c of the act would not be appli cable to the plaintiff as the document of reconveying the property was not part of the same document this court held as under 21 there exists a distinction between mortgage by con ditional sale and a sale with a condition of repurchase in a mortgage the debt subsists and a right to redeem re mains with the debtor but a sale with a condition of repur chase is not a lending and borrowing arrangement there does not exist any debt and no right to redeem is reserved thereby an agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon proviso ap pended to section 58 c however states that if the condi tion for retransfer is not embodied in the document which effects or purports to effect a sale the transaction will not be regarded as a mortgage 14 in tulsi ors v chandrika prasad ors 7 this court held that a distinction exists between a mortgage by way of conditional sale and a sale with condition to repurchase in the former the debt subsists and a right to redeem remains with the debtor but in case of the latter the transaction does not evidence an arrange ment of lending and borrowing thus right to redeem is not re served the circumstances which weighed with the high court holding are that the transaction in question was mortgaged by way of sale it reads thus 9 the following circumstances weighed with the learned trial court as well as the high court in arriving at the finding that the transaction in question was a mortgage by way of a conditional sale 7 2006 8 scc 322 10 i the husband of appellant 1 was a tenant in respect of the property and he continued to occupy the same in the same capacity ii the appellants bore the costs of stamp duty which is not the normal practice in a case of absolute sale iii the transaction essentially was a baibulwafa viz mortgage by conditional sale iv the land was required to be kept in the existing condition v the transferor had an option to repay the entire consideration in one instalment whereupon a deed of reconveyance was to be executed by the transferor in her favour for the said purpose a specific date was fixed viz 30 12 1971 and on obtaining such amount the transferee was to restore possession of the land to the plaintiff and only in the event of default on her part to repay the same was the sale to become absolute and perfect vi in the margin of the deed the transferor categorically stated that he had executed a deed of baibulwafa in respect of two parts of the shop vii the amount has been received by the transferor in the presence of the husband of the transferee in view of the factors mentioned in para 9 the defendants appeal was dismissed and the decree for redemption was main tained 15 in vithal tukaram kadam anr v vamanrao sawalaram bhosale ors 8 the suit for redemption was decreed by setting aside the judgment of the high court it was held as under 8 2018 11 scc 172 11 14 the essentials of an agreement to qualify as a mortgage by conditional sale can succinctly be broadly summarised an ostensible sale with transfer of possession and ownership but containing a clause for reconveyance in accordance with section 58 c of the act will clothe the agreement as a mortgage by conditional sale the execution of a separate agree ment for reconveyance either contemporaneously or subsequently shall militate against the agreement being mortgage by conditional sale there must exist a debtor and creditor relationship the valuation of the property and the transaction value along with the duration of time for reconveyance are important con siderations to decide the nature of the agreement there will have to be a cumulative consideration of these factors along with the recitals in the agree ment intention of the parties coupled with other at tendant circumstances considered in a holistic man ner 16 in another judgment reported as ganpati babji alamwar dead by lrs ramlu ors v digambarrao venkatrao bhadke ors 9 the decree in a suit for redemption was main tained by the high court the court held as under 10 whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case the essentials of an agreement to qualify as a mortgage by conditional sale can succinctly be summarised an ostensible sale with trans fer of possession and ownership but containing a clause for reconveyance in accordance with section 58 c of the act will clothe the agreement as a mortgage by conditional sale the execution of a separate agreement for reconveyance ei ther contemporaneously or subsequently shall militate against the agreement being mortgage by conditional sale there must exist a debtor and creditor relationship the valu 9 2019 8 scc 651 12 ation of the property and the transaction value along with the duration of time for reconveyance are important consid erations to decide the nature of the agreement there will have to be a cumulative consideration of these factors along with the recitals in the agreement intention of the parties coupled with other attendant circumstances considered in a holistic manner the language used in the agreement may not always be conclusive 17 on the other hand learned counsel for the defendants relied upon vanchalabai raghunath ithape dead by lr v shankarrao baburao bhilare dead by lrs ors 10 it was a case where the suit for redemption filed by plaintiff appellant was maintained however the judgment of this court reported in umabai and tulsi were not brought to the notice of this court in the absence of consideration of such judgments we find that the judgment of this court in vanchalabai raghunath ithape will not lay down a binding precedent 18 in dharmaji shankar shinde ors v rajaram shripad joshi dead through lrs ors 11 the defendants appeal was al lowed by this court and the suit for redemption was dismissed it was inter alia held that if the sale and agreement to repurchase are embodied in the separate documents then the transaction can not be a mortgage by conditional sale irrespective of whether the documents are contemporaneously executed but the con verse does not hold good this court held as under 10 2013 7 scc 173 11 2019 8 scc 401 13 22 considering the contemporaneous conduct of the parties it is clear that shankar shinde and thereafter the appellants were dealing with the suit property as if they were the owners of the land the clause in ext p 73 that if the amount is not paid within a period of five years the transaction will become a permanent sale deed and there after the transferee will have the absolute right over the property are consistent with the express intention of parties making the transaction a conditional sale with option to re purchase 19 a perusal of the above judgment shows that the plaintiff has bor rowed a sum of rs 7000 for the marriage of his daughter eight days prior to execution of the document while executing docu ment on 28 7 1967 the plaintiff borrowed an additional amount and a document titled as mortgage by conditional sale was exe cuted for a consideration of rs 2500 but the plaintiff received rs 1800 only this court held that the intention of the parties in putting an end to the debtor creditor relationship with respect to the sum of rs 700 is clear from the recitals of the document it was held that clauses in the document are consistent with the in tention of the parties making the transaction of a conditional sale with an option to repurchase the court held that there are no recitals in the document to establish creditor debtor relationship nor does it contain the right of foreclosure payment of interest etc which are essential requirements in a mortgage deed the court held that undetermined mortgage amount for which the in terest in the immovable property was created as security indi 14 cates that the parties have never intended to create a mortgage deed 20 the said judgment does not help the argument raised by the de fendants as the document in the present case clearly stipulates the amount of rs 3000 was borrowed by the plaintiff and on re turn of such amount a mandate to defendant no 1 to execute re conveyance of suit land was asked for which was refused by de fendant no 1 21 another judgment referred to by the learned counsel for the defen dants is sopan dead through his lr v syed nabi12 but that was a case where the registered sale deed was executed on 10 12 1968 and on the same date a separate agreement was exe cuted whereby the plaintiff has agreed to repay the amount and secure reconveyance of the property since the two separate doc uments were executed this court has rightly found that it is not a document of mortgage but of conditional sale which is not covered by the proviso to section 58 c of the act 22 learned counsel for the defendants has also referred to the fact that the suit for redemption was filed after twenty years of the document being executed and in the meantime defendants have made improvements over the land thus the plaintiff would not be entitled to seek redemption section 63 of the act contem 12 2019 7 scc 635 15 plates that any accession by the mortgagee during the continu ance of the mortgage the mortgagor shall on redemption be enti tled to such accession in the absence of a contract to the contrary under section 63 a of the act the liability of mortgagor to pay for improvement will arise if the mortgagee had to incur the costs to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient or being made in compliance with the lawful order of any public ser vant or public authority none of the eventualities arose in the present case compelling the mortgagor to pay for the improve ments if any carried out by the mortgagee a mortgagee spends such money as is necessary for the preservation of the mortgaged property for destruction forfeiture or sale for supporting the mort gagor s title to the property for making his own title thereto good against the mortgagor and when the mortgaged property is a re newable lease hold for the renewal of the lease such expenditure incurred by the mortgagee can be added to the cost of improve ments in the principal amount due however in the absence of any positive evidence of any improvement and the cost incurred the defendants are not entitled to recover anything more than the mortgage amount since the possession was given to the mort gagee he has enjoyed usufruct from the mortgage property which compensates not only of the user of the land but also improve 16 ments made by him the improvements were to enjoy the usufruct of the property mortgaged 23 the argument that plaintiff has filed suit for redemption after 20 years of execution of the document is not tenable as the suit for redemption can be filed within 30 years from the date fixed for re demption the period of 30 years would commence on 22 2 1969 and the suit was filed in the year 1989 which is within the period of limitation 24 in view thereof we find the order of the first appellate court ac cepting the appeal of the defendants and dismissing the suit for redemption is not sustainable in law so as the order passed by the high court consequently the judgment and decree passed by the first appellate court and that of the high court are set aside and the suit is decreed the plaintiff may pay or deposit the mort gage amount within three months of the receipt of copy of the or der the appeal is allowed with no order as to costs j hemant gupta j a s bopanna new delhi august 13 2021 17 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 10197 of 2010 bhimrao ramchandra khalate deceased through lrs appellant s versus nana dinkar yadav tanpura anr respondent s j u d g m e n t hemant gupta j 1 the plaintiff is in appeal before this court aggrieved against the judgment passed by the high court on 11 8 2006 in second appeal whereby the order passed by the first appellate court on 14 1 2000 was affirmed while dismissing the suit for redemption of the mortgage property 2 brief facts leading rise to the present appeal are that the plaintiff was the owner of 20 gunthas of agricultural land1 situated in village khunte the plaintiff was in need of money so he borrowed rs 3 000 from defendant no 1 on 22 2 1969 by executing a 1 for short the suit land 1 document titled conditional sale deed as a security for the loan amount the plaintiff requested defendant no 1 to reconvey the suit land by accepting the loan amount of rs 3 000 but defendant no 1 refused to do so on 25 2 1989 defendant no 1 transferred the suit land in favour of his brother defendant no 2 the plaintiff filed a suit against the defendants on 5 4 1989 under the transfer of property act 18822 for redemption of mortgaged property and possession the claim of the plaintiff is that the transaction dated 22 2 1969 was in the nature of mortgage even though it was titled as the conditional sale 3 the entire dispute revolves around whether the document dated 22 2 1969 is a document of conditional sale or a mortgage 4 before we advert to the nature and terms of the document certain principles of law need to be stated section 58 c of the act was amended in the year 1929 when a proviso was inserted that provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale 5 in pandit chunchun jha v sheikh ebadat ali anr 3 the plaintiff s suit for redemption was dismissed by the high court but appeal allowed by this court reading the deed as mortgage the question examined was whether a given transaction is a mortgage 2 for short the act 3 air 1954 sc 345 2 by conditional sale or a sale outright with a condition of repurchase it was held that two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another each must be decided on its own facts but certain broad principles were stated the court found that the document had no clause for retransfer and instead says clause 6 that if the executants pay the money within two years the property shall come in exclusive possession and occupation with the transferors the document had no clause for retransfer in these circumstances this court held as under 12 the next step is to see whether the document is covered by section 58 c of the transfer of property act for if it is not then it cannot be a mortgage by conditional sale the first point there is to see whether there is an ostensible sale that means a transaction which takes the outward form of a sale for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached the executants clearly purported to sell the property in clause 5 because they say so therefore if the transaction is not in substance a mortgage it is unquestionably a sale an actual sale and not merely an ostensible one but if it is a mortgage then the condition about an ostensible sale is fulfilled 13 we next turn to the conditions the ones relevant to the present purpose are contained in clauses 6 and 7 both are ambiguous but we have already said that on a fair construction clause 6 means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in 3 them will continue to reside there the necessary consequence of that is that the ostensible sale becomes void similarly clause 7 though clumsily worded can only mean that if the money is not paid then the sale shall become absolute those are not the actual words used but in our opinion that is a fair construction of their meaning when the document is read as a whole if that is what they mean as we hold they do then the matter falls squarely within the ambit of section 58 c 20 it is true this can also be read the other way but considering these very drastic provisions as also the threat of a criminal prosecution in sub clause a we think the transferee was out to exact more than his pound of flesh from the unfortunate rustices with whom he was dealing and that he would not have agreed to account for the profits indeed that is his own case for he says that this was a sale out and out in these circumstances there would be no need to keep a reasonable margin between the debt and the value of the property as it ordinarily done in the case of a mortgage taking everything into consideration we are of opinion that the deed is a mortgage by conditional sale under section 58 c of the transfer of property act 6 in a judgment reported as shri bhaskar waman joshi v shri narayan rambilas agarwal4 a bench of this court has upheld the right of redemption the argument raised by the transferor was that the property transferred was intended to be mortgage under a deed of conditional sale the transferees contended that the deed was absolute sale and that the conveyance was subject to a condition of repurchase it was inter alia held that a transac tion shall not be deemed to be a mortgage unless the condition re ferred to in the clause is embodied in the document which affects 4 air 1960 sc 301 4 or purports to affect the sale it was held that the mortgage by conditional sale postulates the creation by the transfer of a rela tion of mortgagor and mortgagee the price being charged on the property conveyed the court held as under 7 the question whether by the incorporation of such a condition a transaction ostensibly of sale may be regarded as a mortgage is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances the circumstance that the condition is incorporated in the sale deed must undoubtedly be taken into account but the value to be attached thereto must vary with the degree of formality attending upon the transaction the definition of a mortgage by conditional sale postulates the creation by the transfer of a relation of mortgagor and mortgagee the price being charged on the property conveyed in a sale coupled with an agreement to reconvey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer the property within the period specified what distinguishes the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt the form in which the deed is clothed is not decisive the definition of a mortgage by conditional sale itself contemplates an ostensible sale of the property the question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances if the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect it there is ambiguity in the language employed the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals as distinguished from the terms of the documents may of course be given evidence of contemporaneous 5 conduct is always admissible as a surrounding circumstance but evidence as to subsequent conduct of the parties is inadmissible xx xx xx 13 counsel for the transferees sought to rely upon the evidence of subsequent conduct of the transferors as indicative of the character of the transaction as a sale but as already observed that evidence is inadmissible 7 in another judgment reported as p l bapuswami v n pattay gounder5 this court decreed the suit for redemption though the same was dismissed by the high court the high court held that the transaction was an outright sale and not a mortgage by condi tional sale the alternative plea based on the covenant for re con veyance the high court considered that there was no proof that the plaintiff had tendered the amount within the period stipulated in the document in appeal this court held that the distinction be tween the conditional sale and mortgage is the relationship of debtor and creditor and the transfer being a security for the debt the court held as under 5 the definition of a mortgage by conditional sale pos tulates the creation by the transfer of a relation of mort gagor and mortgagee the price being charged on the prop erty conveyed in a sale coupled with an agreement to re convey there is no relation of debtor and creditor nor is the price charged upon the property conveyed but the sale is subject to an obligation to retransfer property within the pe riod specified the distinction between the two transactions is the relationship of debtor and creditor and the transfer being a security for the debt the form in which the deed is 5 air 1966 sc 902 6 clothed is not decisive the question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the of document viewed in the light of surrounding circumstances if the language is plain and unambiguous it must in the light of the evidence of surrounding circumstances be given its true legal effect if there is ambiguity in the language employed the inten tion may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts 8 in view of the judgments referred to above now we examine the facts of present case the deed in question is ex 68 the docu ment reads as under i above executant given in writing that i am executing this conditional sale deed in your favour in front of sub reg istrar phaltan as i am taking rs 3 000 three thousand in cash from you for my household expenses in respect of land which is in my possession owned by me and enjoyed by me absolutely on this date the description of the land located within limits of town khunte division satara tq phaltan ir rigated by government canal its boundaries and other particulars are xx xx xx the above land owned and enjoyed by me along with all materials standing on it including trees stones mud etc is being handed over to you by me for your possession on the condition that you are giving back its possession to me any time within one year from t he date of this sale deed when i repay the above amount to you while re transferring the above land to my name in case non payment by me of the said amount within the stipulated period this sale deed will be taken as a permanent one and you will enjoy the posses sion of the land as your own any future disputes in respect of the said land will be dealt by me if they arise i sign this sale deed today on 22nd february 1969 7 9 a perusal of the aforesaid document would show that i the plaintiff has borrowed a sum of rs 3 000 from the de fendant for his household expenses in respect of the land which was in his possession ii the possession of land was handed over to the defendant on the condition that the possession will be given back to him within one year from the date of conditional sale deed iii the defendant is bound to retransfer the land to the plaintiff when he repays the amount of rs 3 000 iv if the amount is not paid within the stipulated period the conditional sale deed may be taken as a permanent one 10 a complete reading of the document would show that a sum of rs 3 000 was taken as a loan from the defendant for household expenses the same was to be returned and the defendant was bound to retransfer the land the condition that if the plaintiff is not able to pay the loan amount within one year the document will be taken as a permanent sale deed is the contentious clause between the parties 11 in view of the judgments mentioned above the intention of the parties has to be seen when the document is executed it is not in dispute that the condition of retransfer is a part of the same docu ment ex 68 such is the condition inserted by an amendment in the year 1929 expressed by the proviso of section 58 c of the act as held in pandit chunchun jha a transaction which takes the 8 outward form of a sale but in essence the documents are of a mortgage though it is couched in the form of a sale this court held that it is impossible to compare one case with another each case must be decided on its own facts and circumstances the document has to read as a whole and if any word is ambiguous then to find out the intention of the parties when such document was executed 12 therefore a reading of the document would show that the docu ment was executed for the reason that the plaintiff has borrowed a sum of rs 3 000 for his household expenses and the defendant is bound to retransfer the land if the amount is paid within one year the advance of loan and return thereof are part of the same docu ment which creates a relationship of debtor and creditor thus it would be covered by proviso in section 58 c of the act now some of the later judgments of this court interpreting the proviso in section 58 c of the act need to be considered 13 this court in umabai anr v nilkanth dhondiba chavan dead by lrs anr 6 was examining contemporaneous docu ments executed on 30 12 1970 whereby the plaintiff had agreed to sell the property for consideration of rs 45 000 a sale deed was executed as well another agreement to sale was executed be tween the parties on the same date where the defendants agreed to reconvey the property on receipt of rs 45 000 it was thus 6 2005 6 scc 243 9 held that the benefit of section 58 c of the act would not be appli cable to the plaintiff as the document of reconveying the property was not part of the same document this court held as under 21 there exists a distinction between mortgage by con ditional sale and a sale with a condition of repurchase in a mortgage the debt subsists and a right to redeem re mains with the debtor but a sale with a condition of repur chase is not a lending and borrowing arrangement there does not exist any debt and no right to redeem is reserved thereby an agreement to sell confers merely a personal right which can be enforced strictly according to the terms of the deed and at the time agreed upon proviso ap pended to section 58 c however states that if the condi tion for retransfer is not embodied in the document which effects or purports to effect a sale the transaction will not be regarded as a mortgage 14 in tulsi ors v chandrika prasad ors 7 this court held that a distinction exists between a mortgage by way of conditional sale and a sale with condition to repurchase in the former the debt subsists and a right to redeem remains with the debtor but in case of the latter the transaction does not evidence an arrange ment of lending and borrowing thus right to redeem is not re served the circumstances which weighed with the high court holding are that the transaction in question was mortgaged by way of sale it reads thus 9 the following circumstances weighed with the learned trial court as well as the high court in arriving at the finding that the transaction in question was a mortgage by way of a conditional sale 7 2006 8 scc 322 10 i the husband of appellant 1 was a tenant in respect of the property and he continued to occupy the same in the same capacity ii the appellants bore the costs of stamp duty which is not the normal practice in a case of absolute sale iii the transaction essentially was a baibulwafa viz mortgage by conditional sale iv the land was required to be kept in the existing condition v the transferor had an option to repay the entire consideration in one instalment whereupon a deed of reconveyance was to be executed by the transferor in her favour for the said purpose a specific date was fixed viz 30 12 1971 and on obtaining such amount the transferee was to restore possession of the land to the plaintiff and only in the event of default on her part to repay the same was the sale to become absolute and perfect vi in the margin of the deed the transferor categorically stated that he had executed a deed of baibulwafa in respect of two parts of the shop vii the amount has been received by the transferor in the presence of the husband of the transferee in view of the factors mentioned in para 9 the defendants appeal was dismissed and the decree for redemption was main tained 15 in vithal tukaram kadam anr v vamanrao sawalaram bhosale ors 8 the suit for redemption was decreed by setting aside the judgment of the high court it was held as under 8 2018 11 scc 172 11 14 the essentials of an agreement to qualify as a mortgage by conditional sale can succinctly be broadly summarised an ostensible sale with transfer of possession and ownership but containing a clause for reconveyance in accordance with section 58 c of the act will clothe the agreement as a mortgage by conditional sale the execution of a separate agree ment for reconveyance either contemporaneously or subsequently shall militate against the agreement being mortgage by conditional sale there must exist a debtor and creditor relationship the valuation of the property and the transaction value along with the duration of time for reconveyance are important con siderations to decide the nature of the agreement there will have to be a cumulative consideration of these factors along with the recitals in the agree ment intention of the parties coupled with other at tendant circumstances considered in a holistic man ner 16 in another judgment reported as ganpati babji alamwar dead by lrs ramlu ors v digambarrao venkatrao bhadke ors 9 the decree in a suit for redemption was main tained by the high court the court held as under 10 whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case the essentials of an agreement to qualify as a mortgage by conditional sale can succinctly be summarised an ostensible sale with trans fer of possession and ownership but containing a clause for reconveyance in accordance with section 58 c of the act will clothe the agreement as a mortgage by conditional sale the execution of a separate agreement for reconveyance ei ther contemporaneously or subsequently shall militate against the agreement being mortgage by conditional sale there must exist a debtor and creditor relationship the valu 9 2019 8 scc 651 12 ation of the property and the transaction value along with the duration of time for reconveyance are important consid erations to decide the nature of the agreement there will have to be a cumulative consideration of these factors along with the recitals in the agreement intention of the parties coupled with other attendant circumstances considered in a holistic manner the language used in the agreement may not always be conclusive 17 on the other hand learned counsel for the defendants relied upon vanchalabai raghunath ithape dead by lr v shankarrao baburao bhilare dead by lrs ors 10 it was a case where the suit for redemption filed by plaintiff appellant was maintained however the judgment of this court reported in umabai and tulsi were not brought to the notice of this court in the absence of consideration of such judgments we find that the judgment of this court in vanchalabai raghunath ithape will not lay down a binding precedent 18 in dharmaji shankar shinde ors v rajaram shripad joshi dead through lrs ors 11 the defendants appeal was al lowed by this court and the suit for redemption was dismissed it was inter alia held that if the sale and agreement to repurchase are embodied in the separate documents then the transaction can not be a mortgage by conditional sale irrespective of whether the documents are contemporaneously executed but the con verse does not hold good this court held as under 10 2013 7 scc 173 11 2019 8 scc 401 13 22 considering the contemporaneous conduct of the parties it is clear that shankar shinde and thereafter the appellants were dealing with the suit property as if they were the owners of the land the clause in ext p 73 that if the amount is not paid within a period of five years the transaction will become a permanent sale deed and there after the transferee will have the absolute right over the property are consistent with the express intention of parties making the transaction a conditional sale with option to re purchase 19 a perusal of the above judgment shows that the plaintiff has bor rowed a sum of rs 7000 for the marriage of his daughter eight days prior to execution of the document while executing docu ment on 28 7 1967 the plaintiff borrowed an additional amount and a document titled as mortgage by conditional sale was exe cuted for a consideration of rs 2500 but the plaintiff received rs 1800 only this court held that the intention of the parties in putting an end to the debtor creditor relationship with respect to the sum of rs 700 is clear from the recitals of the document it was held that clauses in the document are consistent with the in tention of the parties making the transaction of a conditional sale with an option to repurchase the court held that there are no recitals in the document to establish creditor debtor relationship nor does it contain the right of foreclosure payment of interest etc which are essential requirements in a mortgage deed the court held that undetermined mortgage amount for which the in terest in the immovable property was created as security indi 14 cates that the parties have never intended to create a mortgage deed 20 the said judgment does not help the argument raised by the de fendants as the document in the present case clearly stipulates the amount of rs 3000 was borrowed by the plaintiff and on re turn of such amount a mandate to defendant no 1 to execute re conveyance of suit land was asked for which was refused by de fendant no 1 21 another judgment referred to by the learned counsel for the defen dants is sopan dead through his lr v syed nabi12 but that was a case where the registered sale deed was executed on 10 12 1968 and on the same date a separate agreement was exe cuted whereby the plaintiff has agreed to repay the amount and secure reconveyance of the property since the two separate doc uments were executed this court has rightly found that it is not a document of mortgage but of conditional sale which is not covered by the proviso to section 58 c of the act 22 learned counsel for the defendants has also referred to the fact that the suit for redemption was filed after twenty years of the document being executed and in the meantime defendants have made improvements over the land thus the plaintiff would not be entitled to seek redemption section 63 of the act contem 12 2019 7 scc 635 15 plates that any accession by the mortgagee during the continu ance of the mortgage the mortgagor shall on redemption be enti tled to such accession in the absence of a contract to the contrary under section 63 a of the act the liability of mortgagor to pay for improvement will arise if the mortgagee had to incur the costs to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient or being made in compliance with the lawful order of any public ser vant or public authority none of the eventualities arose in the present case compelling the mortgagor to pay for the improve ments if any carried out by the mortgagee a mortgagee spends such money as is necessary for the preservation of the mortgaged property for destruction forfeiture or sale for supporting the mort gagor s title to the property for making his own title thereto good against the mortgagor and when the mortgaged property is a re newable lease hold for the renewal of the lease such expenditure incurred by the mortgagee can be added to the cost of improve ments in the principal amount due however in the absence of any positive evidence of any improvement and the cost incurred the defendants are not entitled to recover anything more than the mortgage amount since the possession was given to the mort gagee he has enjoyed usufruct from the mortgage property which compensates not only of the user of the land but also improve 16 ments made by him the improvements were to enjoy the usufruct of the property mortgaged 23 the argument that plaintiff has filed suit for redemption after 20 years of execution of the document is not tenable as the suit for redemption can be filed within 30 years from the date fixed for re demption the period of 30 years would commence on 22 2 1969 and the suit was filed in the year 1989 which is within the period of limitation 24 in view thereof we find the order of the first appellate court ac cepting the appeal of the defendants and dismissing the suit for redemption is not sustainable in law so as the order passed by the high court consequently the judgment and decree passed by the first appellate court and that of the high court are set aside and the suit is decreed the plaintiff may pay or deposit the mort gage amount within three months of the receipt of copy of the or der the appeal is allowed with no order as to costs j hemant gupta j a s bopanna new delhi august 13 2021 17 2177 2009_crl a no 000834 000834 2009 the kerala forest department state the kerala forest department state of uttar pradesh4to say that the appellate court can interfere with the order 2008 12 19 of the offence is dependant on knowledge and the words knowing or knowingly are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established sometimes see for example sections 212 411 etc the expression has reason to believe is used the words knowing or knowingly are obviously more forceful than the words has reason to believe because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly it is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed when these words are used something more than suspicion or reason for belief is required before an offence under section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted 25 therefore in the present case the state had to show that lohiya v state officer v p officer v p ltd v union lal v state officer v p agha v state singh v state gangaram v state nathulal v state umashanker v state maharashtra v mayer 1966 sc 43 singh v state 1967 jlj 234 1 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 834 of 2009 bharath booshan aggarwal appellant s versus state of kerala respondent s j u d g m e n t s ravindra bhat j 1 this appeal by special leave questions a judgment of the kerala high court1 reversing the judgment of the learned sessions judge and consequently restoring the conviction and sentence of 3 years imprisonment for the offence punishable under section 27 of the kerala forest act hereafter the act 2 the first appellant is a partner of the appellant s firm and claims to be manufacturer and trader of sandalwood oil on 4 january 1994 upon receipt of information officials of the kerala forest department seized 37 cartons containing 460 kgs of sandalwood oil at karipur airport belonging to the appellants later a criminal complaint was filed by the state wherein it was alleged that the appellants premises were searched in the course of investigation which in turn yielded in seizure of another 73 6 kgs of sandalwood oil the appellant resisted the charges of illegal possession of forest produce and its movement stating that they processed and manufactured sandalwood oil which was then exported to four different countries the 1dated 19 12 2008 in crl a no 556 2001 2 complaint filed by the kerala forest department alleged that sandalwood oil was a forest produce and without a transit licence its movement too was illegal 3 in the criminal proceedings which ensued after initiation of the complaint the appellant denied criminal responsibility arguing among others that sandalwood oil was not a forest produce and rather that sandalwood was it was urged that regardless of this a valid and subsisting licence authorized the appellant to manufacture sandalwood oil the prosecution examined four witnesses the appellant relied on the testimony of two defense witnesses after considering the materials on record the judicial magistrate thamarasserry hereafter the trial court by judgment2 convicted the appellant as charged and sentenced him to pay rs 2000 as fine and undergo rigorous imprisonment for three years under section 27 1 d of the act and six months under rule 3 iii read with rule 23 of the kerala forest produce transit rules hereafter the rules 4 aggrieved by the conviction recorded and sentence imposed on him the appellant approached the court of session kozhikode division hereafter the sessions court which by its judgment3 upset the findings of the trial court the sessions court accepted the appellant s plea and held that in view of the certificate issued by the central excise authorities his possession of sandalwood oil in the factory could not be termed as illegal and that a conviction under section 27 could be recorded only if it was found that sandalwood oil was removed illegally or without authorization from any reserve forest or area proposed to be constituted as reserve forest 5 aggrieved by the appellant s acquittal and in view of the findings of the learned sessions judge the state appealed the high court which considered this appeal reversed the judgment of the sessions court on two counts it was 2 dated 19 08 1997 3dated 20 11 2000 3 held by the impugned judgment that though the appellants held a licence to manufacture sandalwood oil nevertheless they failed to account for possession of such a large quantity of sandalwood oil when charged with commission of the offence in question the accused concerned or individual was bound to show a proper account of the raw materials collected and used to manufacture sandalwood oil relying upon the testimony of pw 4 who had stated that the accused failed to furnish the dates and details regarding procurement of crude sandalwood and crude sandalwood oil popularly known as red oil the court held that during the trial too the appellant had failed to give any particulars with respect to persons from whom purchase of these raw materials were made the failure of the defence to explain this vital aspect rendered the findings of the sessions court vulnerable taking note of section 69 of the act which mandated a presumption of culpability in the event possession was found in any given case the high court held that the accused should have given an account regarding the raw materials collected and used noting the state s submission that to manufacture 5430 kilos of sandalwood oil at least 5600 kilograms of crude sandalwood oil was required which in turn needed to be extracted from at least 200 metric tons of sandalwood the high court concluded that the reliance on the manufacturing licence alone to explain the possession of sandalwood oil did not in any manner absolve the appellant of criminal responsibility 6 the high court also relied upon a decision of this court in ghure lal v state of uttar pradesh4to say that the appellate court can interfere with the order of acquittal only for substantial and compelling reasons it was held that there were no compelling or substantial reasons justifying interference by the sessions court of the appellant s conviction the high court thereafter concluded by observing that a purposive interpretation of the act had to be given in view of the underlying objects which were for the general public good 4 2008 10 scc 450 4 7 it is argued on behalf of the appellant by mr ranjit kumar learned senior counsel that the high court failed to appreciate that an offence is said to be committed only when the article in question is forest produce relying on the definition of that term in the act it was submitted that section 2 f i 5 specifically states that sandalwood is one such produce the reference to wood oil cannot therefore be said to include sandalwood oil the appellants counsel relied on the decisions of this court in suresh lohiya v state of maharashtra6 and the recent ruling in standard essential oil industries v forest range officer7 to urge that courts cannot expand the scope of a legislation departing from its text especially if it entails fastening of criminal liability 8 it was argued that as the appellant proved that he held a valid licence to manufacture sandalwood oil out of red oil no offence was made out it was argued that acquisition of raw materials was established through the documents maintained by the appellant in accordance with the procedure prescribed by the central excise rules 1944 there could resultantly have been no inference of illegality committed in the possession of sandalwood oil mr ranjit kumar said that the high court fell into the error in not appreciating that the appellants had duly maintained the register containing information as to where and how raw material required for manufacture of the sandalwood oil was obtained and that in the absence of any evidence to the contrary by the individuals or firms which had supplied such raw material no presumption could be drawn that the 5 section 2 f reads as follows f forest produce includes i the following whether found in or brought from a forest or not that is to say timber charcoal wood oil gum resin natural varnish bark lac fibres and roots of sandal wood and rosewood and ii the following when found in or brought from a forest that is to say a trees and leaves flowers and fruits and all other parts or produce not hereinbefore mentioned of trees b plants not being trees including grass creepers reeds and moss and all parts or produce of such plants and c silk cocoons honey and wax d peat surface soil rock and minerals including limestone laterite minerals oils and all products of mines or quarries 6 1996 10 scc 397 7 2018 16 scc 180 5 finished product originated from illegally procured sandalwood or red oil extracted from sandalwood it was pointed out that the appellants had in the course of their business relied on the licence to manufacture sandalwood oil and had been exporting it through proper channels for several years this resulted in valuable acquisition of foreign exchange to the country had there been any illegality such exports would have ceased a long time back 9 learned counsel submitted that the high court failed to consider the distinction between section 27 and section 69 of the act it was emphasised that section 69 refers to only forest produce whereas section 27 refers to forest produce illegally removed from a reserve forest the high court convicted the appellant holding that the presumption under section 69 applied the appellant had in fact discharged the burden placed upon them by producing registers maintained regarding details of individuals and firms from whom they had purchased the red oil therefore the prosecution was under a duty to prove that such entries were false having been maintained in the ordinary course of business the courts especially the trial court and the high court failed to consider that the prosecution was unable to establish that the source of the sandalwood oil and therefore the basis for its possession was illegal 10 highlighting that section 27 applied only where the court found that when a firm or concern knowingly receives or has possession of any forest produce illicitly removed learned senior counsel urged that the prosecution in this case failed to prove either the prosecution never alleged that the appellant had knowingly received or were in possession of any forest produce illicitly removed from the reserve forest likewise it was not its case that any forest produce had been illegally removed from the reserve forest and that any proceedings were pending for that purpose learned counsel submitted that the courts below failed to appreciate that the complaint did not allege illicit removal of forest produce from the reserve forest likewise the evidence of the four witnesses showed that none of them remotely suggested that the forest produce 6 found had been illicitly removed from the reserve forest accordingly the elements making up the offence under section 27 1 d of the act had not been proved 11 it was urged that section 69 enacts a presumption that forest produce is deemed to be a property of the government where ownership is disputed at the same time section 27 1 d makes it an offence where anyone is in conscious possession of forest produce which is illicitly removed from a reserve forest in this context it was argued that the appellant s firm holds a valid l 4 licence issued by central excise authorities to manufacture sandalwood oil registration of the appellant s firm under the kerala general sales tax act 1963 and central sales tax act 1956 was established the firm had no infrastructure to manufacture sandalwood oil from sandalwood therefore it is apparent that the department did not lead any evidence to prove that the forest produce involved was in fact illicitly removed the firm was entitled to possess and deal with sandalwood oil in its godown and elsewhere by no stretch of imagination therefore could it be said that possession of sandalwood oil in the firm s godown as well as in the airport was illegal or unauthorised furthermore the learned senior counsel submitted that if the appellant had indulged in any illegality with respect to procurement of the raw materials their exports would not have been permitted 12 the state argues that this court should not interfere with the findings and conviction recorded by the impugned judgment its counsel mr c sashi submits that there can be no debate as to whether sandalwood oil is a forest produce learned counsel relied upon the judgment of this court reported as forest range officer v p mohammed ali8 and submitted that the decision later rendered in standard essential oil industries supra in fact emphatically states that forest produce as defined in the act includes sandalwood oil 81993 supp 3 scc 627 7 learned counsel for the state submits that once there is no dispute with respect to possession of sandalwood oil as in this case the onus clearly lay upon the appellant to prove that such possession was lawful that the forest produce was procured through legitimate sources and not in a manner contrary to law 13 learned counsel argued that the mere statement on the part of the appellant that they used to deal in sandalwood oil processed or produced from red oil as the raw material which in turn was extracted from sandalwood was insufficient to discharge the initial burden placed upon them by law counsel highlighted that once their possession of the forest produce was established the appellant relied upon certain entries in the central excise registers and other records to explain that the source of such articles were legitimate by themselves such documents were insufficient the presumption under section 69 operated firstly after the state established possession of forest produce in this case sandalwood oil is a forest produce the seizure of the appellant s sandalwood oil at the airport and the subsequent search and seizure of 73 6 kgs of sandalwood oil from their premises resulted in the discharge of the foundational onus that lay upon the state therefore section 69 and the presumption enacted by it were attracted the burden was then shifted to the appellant to establish that the forest produce was sourced legitimately and that they had a lawful right to the articles it was reiterated that this burden could not be simply discharged by stating that some traders had supplied varying quantities of red oil the traders or some of them should have stepped into the witness box and proved that the statements made by the appellant was correct the appellant only relied on the invoices and the registers which were inadequate and did not provide all the details for a proper verification the trial court observed that these facts were established by the deposition of the investigating officer in the circumstances it could not be said that the appellant had discharged the burden of proving that the forest produce was legitimately secured or sourced by them and that its possession was legal 8 14 learned counsel relied upon the ruling of this court in ghure lal supra to argue that if the appellate court reverses the conviction unreasonably without any compelling reason and contrary to record based upon a misappreciation of evidence or the law the high court can interfere with such findings on the basis of all these submissions the state urges that this court should dismiss the appeal and confirm the conviction recorded by the trial court relevant provisions of the act 15 section 2 f defines forest and states 2 f forest includes i the following whether found in or brought from a forest or not that is to say timber charcoal wood oil gum resin natural varnish bark lac fibres and roots of sandalwood and rosewood and ii the following when found in or brought from a forest that is to say a trees and leaves flowers and fruits and all other parts or produce not here in before mentioned of trees b plants not being trees including grass creepers reeds and moss and all parts or produce of such plants c silk cocoons honey and wax and d peat surface soil rock and minerals including lime stone laterite mineral oils and all products of mines or quarries section 27 reads as follows 27 1 any person who a does any act prohibited by section 7 or b sets fire to a reserved forest or kindles or leaves burning any fire in such manner as to endanger the same or c sets fire to jungles or forests other than reserved forests and a land proposed to be constituted a reserved forest without taking precautionary measures to prevent the spread of fire into reserved forest and land proposed to be constituted a reserved forest or d knowingly receives or has in possession any forest produce illicitly removed from a reserved forest or a land proposed to be constituted a reserved forest or 9 e in a reserved forest or in a land proposed to be constituted a reserved forest i cultivates or clears or breaks up any land for cultivation or for any other purpose or puts up any shed or other structures or plant trees or ii damages alters or removes any wall ditch embankment fence hedge or railing or iii cuts of fells any trees or girdles marks lops taps uproots burns saws converts or removes any tree including fallen or felled or strips off the bark or leaves from or otherwise damages the same iv trespasses or pastures cattle or permits or causes cattle to trespass or v quarries stones burns lime or charcoal or collects or subject to any manufacturing process or removes any forest produce or vi causes any damage by negligence in felling any tree reed or cutting or dragging any timber shall be punished with imprisonment for a team which shall not be less than one year but may extend to five years and with fine which shall not be less than one thousand rupees but may extend to five thousand rupees in addition to such compensation for damage done to the forest as the convicting court may direct to be paid section 69 is in the following terms 69 when in any proceedings taken under this act or in consequence of anything done under this act a question arises as to whether any forest produce is the property of the central or state government such produce shall be presumed to be the property of the central or state government as the case may be until the contrary is proved 16 rule 3 of the rules prescribes that no one can import or export timber or other forest produce or transport it unless a pass as prescribed by the rules accompanies its movement rule 3 3 prescribes the procedure for obtaining such a pass rule 23 of the rules prescribes that any contravention of the rules would attract a punishment for a term that can extend to six months or fine that can extend to rupees five hundred or both 17 in forest range officer v p mohammed ali supra the provisions of the act which this court is concerned with in this case i e the kerala forest act were interpreted in the context of a submission that sandalwood oil was not 10 forest produce and that the expression wood oil was referrable to items other than those enumerated such as sandalwood rosewood roots etc and further that wood oil referred to natural products and not those derived through processing this court repelled such an interpretation and held that 6 it must be noted in this context that there are several types of essential oils in india the important ones being sandalwood oil agar wood oil deodar oil and pine oil apart from oleo resin and wood oil derived from exudation from living trees in the forest area these essential oils are obtained from any forest wood sandalwood as observed by the high court is forest produce even its roots thereof are also included as forest produce they are also timber within the meaning of section 2 k of the act the purpose of the act is to conserve forest wealth which is very dear for preservation to maintain ecology forest produce defined under section 2 f is an inclusive definition it is settled law that the word include is generally used as a word of extension when used in an interpretation clause it seeks to enlarge the meaning of the words or phrases occurring in the body of the statute craies on statute law 7th edition at p 64 stated the construction to be adopted to the meanings of the words and phrases that the cardinal rule for the construction of acts of parliament is that they should be construed according to the intention expressed in the acts themselves if the words of the statute are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense the words themselves alone do in such a case best declare the intention of the law giver at p 214 it is stated that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning an interpretation clause of the inclusive definition is not meant to prevent the word receiving its ordinary popular and natural sense whenever that word would be properly applicable but to enable the word as used in the act when there is nothing in the context or the subject matter to the contrary to be applied to somethings to which it would not ordinarily be applicable an interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivocal and not so as to disturb the meaning of such as are plain at p 216 it is stated that another important rule with regard to the effect of an interpretation clause is that an interpretation clause is not to be taken as substituting one set of words for another or as strictly defining what the meaning of the term must be under all circumstances but rather as declaring what may be comprehended within the term where the circumstances require that it should be so construed 8 the word include in the definition under section 2 f would show that it did not intend to exclude what would ordinarily and in common 11 parlance be spoken of as wood oil the expression being technical and being part of an inclusive definition has to be construed in its technical sense but in an exhaustive manner it cannot be restricted in such a manner so as to defeat the principal object and purpose of the act the process by which the oil is extracted is not decisive as oil may be extracted by natural process of exudation or it may be extracted by subjecting to chemical or mechanical process and sandalwood santalum album is cut into pieces its heartwood and roots of sandalwood trees removed from the forest are used as a raw material at a factory level that too by mechanised process to extract sandalwood oil the purpose for which the oil is used is not decisive therefore the word wood oil used in the act will require purposive interpretation drawing upon the context in which the words are used and its meaning will have to be discovered having regard to the intention and object which legislature seeks to subserve the restricted meaning sought to put up by the accused would frustrate the object and the literal interpretation would defeat the meaning the legislature does not intend to restrict the word wood oil nor do we find any compelling circumstances in the act to give restricted meaning that only oil derived from dipterocarpus trees to be wood oil as contended for the accused and which found acceptance by the learned single judge the purposive interpretation would aid conservation of sandalwood a valuable forest wealth prevent illicit felling and transportation of them and make the manufacturers of sandalwood oil accountable for the possession of sandalwood trees or chips or roots etc incorporation of sandalwood oil ex abundenti cautela in karnataka act and absence thereof in sister acts operating in south india does not detract from giving it its due meaning the expert opinion is only an opinion evidence on either side and does not aid us in interpretation this court in aditya mills ltd v union of india 1988 4 scc 315 did not adopt the dictionary meaning as it may be to some extent delusive guide to interpret entries in central excises and salt act in kishan lal v state of rajasthan 1990 supp scc 742 of which one of us sahai j was a member this court was to consider the word sugar whether under rajasthan agricultural produce marketing act 1961 an agricultural produce it was contended that the khandsari sugar was not an agricultural produce repelling that contention this court held that the word agricultural produce includes all produce whether agricultural horticultural animal husbandry or otherwise as specified in the schedule the legislative power to add or include and define a word even artificially apart the definition which is not exhaustive but inclusive neither excludes any item produced in mills or factories nor it confines its width to produce from soil if that be the construction then all items of animal husbandry shall stand excluded it further overlooks the expression or otherwise as specified in the schedule accordingly it was held that khandsari sugar is an agricultural produce under that act 18 in the other judgment relied on by both parties i e standard essential oil industries supra the issue was whether sandalwood oil could be 12 confiscated by virtue of provisions of section 61a of the kerala forest act 9 this court held that sandalwood oil though a forest produce could not be the subject matter of section 61a in view of its restrictive wording 21 a perusal of the definition of forest produce as given by section 2 f of the act shows that other than timber charcoal firewood it includes wood oil gum resin natural varnish bark roots of sandalwood etc however the use of the specific words timber charcoal firewood and ivory under section 61 a instead of any forest produce or ivory makes it clear that the intention of the legislature in providing armoury under section 61 a is only with regard to certain category specified therein and not for every forest produce as defined under section 2 f of the act undoubtedly sandalwood oil is a forest produce but section 61 a of the act is limited only to the categories specified therein and does not give power of confiscation of sandalwood oil 22 further we find force in the contention of the appellants that section 69 of the act is only a rule of evidence which raises a mandatory presumption that a forest produce unless proved otherwise is a property of the government in case where any proceedings are going on under the act or anything is done under the act the section operates only as a tool to help the government in proving its title to the property but the said section cannot be read as to give any power of confiscation of the property emphasis supplied 19 in suresh lohiya supra this court struck a discordant note drawing a distinction between nature s gifts such as charcoal mahua flowers or minerals and article produced with the aid of human labour which according to it was not included in the definition of forest produce under the act 9that provision i e section 61a was inserted in 1975 by the state assembly and prescribed inter alia the procedure to be followed in cases where the state apart from seizing the forest produce also intended to confiscate the property and the articles used for commission of the offence the material part of section 61a reads as follows 61a confiscation by forest officers in certain cases 1 notwithstanding anything contained in the foregoing provisions of this chapter where a forest offence is believed to have been committed in respect of timber charcoal firewood or ivory which is the property of the government the officer seizing the property under sub section 1 of section 52 shall without any unreasonable delay produce it together with all tools ropes chains boats vehicles and cattle used in committing such offence before an officer authorized by the government in this behalf by notification in the gazette not being below the rank of an assistant conservator of forests hereinafter referred to as the authorized officer 13 7 the legislature having defined forest produce it is not permissible to us to read in the definition something which is not there we are conscious of the fact that forest wealth is required to be preserved but it is not open to us to legislate as what a court can do in a matter like at hand is to iron out cresses it cannot weave a new texture if there be any lacuna in the definition it is really for the legislature to take care of the same 8 we may also state that according to us the view taken by the gujarat high court in fatesang s case is correct because though bamboo as a whole is forest produce if a product commercially new and distinct known to the business community as totally different is brought into existence by human labour such an article and product would cease to be a forest produce the definition of this expression leaves nothing to doubt that it would dot take within its fold an article or thing which is totally different from forest produce having a distinct character may it be stated that where a word or an expression is defined by the legislature courts have to look to that definition the general understanding of it cannot be determinative so what has been stated in strouds judicial dictionary regarding a produce can not be decisive therefore where a product from bamboo is commercially different from it and in common parlance taken as a distinct product the same would not be encompassed within the expression forest produce as defined in section 2 4 of the act despite it being inclusive in nature that bamboo mat is taken as a product distinct from bamboo in the commercial world has not been disputed before us and rightly 20 it is noteworthy that in suresh lohiya supra this court made no reference and did not advert to forest range officer v p mohammed ali supra in suresh lohiya also we notice this court sought to interpret the interplay between forest produce timber and tree and concluded that articles or products created by human toil are not per se forest products this court is of the opinion that the distinction sought to be made defeats the purpose of the act because illegally procured forest produce such as sandalwood rosewood or other rare species and then worked upon resulting in a product predominantly based on the essential forest produce would escape the rigors of the act therefore suresh lohiya cannot be considered a binding authority its dicta should be understood as confined to the facts of that case for these reasons it is held that the impugned judgment so far as it proceeded on the assumption that sandalwood oil is forest produce is based on a correct appreciation of law 14 21 in the present case the appellant did not dispute ownership of the articles seized section 69 of the act enacts presumption that when possession of a forest produce is found with someone that it is deemed to belong to the state or central government now this presumption is a rebuttable one several decisions of this court have said that the burden of proving the foundational facts which will give rise to the presumption is upon the prosecution 10in the present case there is no contest about the fact that the goods were seized from the premises of the appellant and belonged to him the goods seized from the airport were to be shipped to overseas destinations in these circumstances this court is of the opinion that the foundational facts i e possession of the forest produce were proved by the state 22 the next question is whether the appellant proved that the produce was procured properly their case was twofold one that as holder of a central excise licence to manufacture sandalwood oil the prosecution had to fail the appellant had sought to rely on the statutory registers which they were bound to keep it was also submitted that the oil was produced by the appellant from the raw materials i e red oil which they had purchased from many traders for which some 45 invoices were relied upon according to the statement made to the forest authorities at the time of the search and seizure these raw materials were obtained in the course of 104 transactions where smaller quantities of red oil were purchased pw 2 the flying squad officer of the forest department who deposed during the trial in the course of cross examination stated that the cartons were kept in the open in the airport and bore the labels of the appellant firm the witness further stated that the goods were seized because it was not known where they originated from nor where they were bought he also stated that the goods i e sandalwood oil cartons were seized for the reason that documents to show from where they came were not produced the appellants 10noor agha v state of punjab 2008 16 scc 417 bhola singh v state of punjab 2011 1 scc 653 and gangadhar gangaram v state of madhya pradesh judgment dated 5th august 2020 in cr a no 504 2020 15 had alleged that the red oil was purchased for processing from several persons and that particulars had been furnished to the forest authorities pw 4 was silent about verification of these details he stated in cross examination generally that the addresses of the traders who sold the oil to the appellant were provided but incomplete secondly it was urged that the prosecution did not produce any material to support the plea that the appellant s information was suspect or lacked credibility pw 4 had further stated that the appellant purchased the seized goods when they were auctioned by the state after the applications for their release to the accused appellants were dismissed by the court this witness also stated that the yield of sandalwood oil is to the extent of 4 from sandalwood 23 there can be no dispute that sandalwood oil is a forest product however section 27 1 d which enacts the offence and which has been applied in this case points to the offender s conscious mental state when it enacts that whoever knowingly receives or has in possession any major forest produce illicitly removed from a reserved forest would be subjected to the prescribed punishment the presumption under section 69 is with respect to not a conscious mental state or a direction by the legislature that a certain state of affairs is deemed to exist but with respect to ownership of the property i e that it belongs to the state unless the contrary is proved 24 this is a significant aspect because unlike some statutes11 the act in the present case does not create a presumption about a culpable mental state of the 11for example income tax act 1961 section 278e 1 in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution explanation in this sub section culpable mental state includes intention motive or knowledge of a fact or belief in or reason to believe a fact 2 for the purposes of this section a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability 16 alleged offender instead the nature of the presumption is that it relates to the ownership of the forest produce this important aspect has a bearing on the matter whether an offence can be said to have been committed without the necessary mens rea has often arisen for consideration generally there is a presumption that mens rea is an essential ingredient in every offence yet that presumption can be displaced either by the phraseology of the law creating the offence or by the subject matter with which it deals both must be considered 12 this court in nathulal v state of madhya pradesh13 in that context observed as follows mens rea is an essential ingredient of a criminal offence doubtless a statute may exclude the element of mens rea but it is a sound rule of construction adopted in england and also accepted in india to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated the nature of the mens rea that would be implied in a statute creating an offence depends on the object of the act and the provisions thereof umashanker v state of chhattisgarh14 underlined the existence of mens rea as follows section 10e of the essential commodities act is as follows 10e presumption of culpable mental state 1 in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution explanation in this section culpable mental state includes intention motive knowledge of a fact and the belief in or reason to believe a fact 2 for the purposes of this section a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability 12sherras v de rutzen 1895 1 qb 918 state of maharashtra v mayer hans george1965 1 scr 123 13air 1966 sc 43 14 2001 9 scc 642 17 7 sections 489 a to 489 e deal with various economic offences in respect of forged or counterfeit currency notes or banknotes the object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes the currency notes are in spite of growing accustomedness to the credit card system still the backbone of the commercial transactions by the multitudes in our country but these provisions are not meant to punish unwary possessors or users 8 a perusal of the provisions extracted above shows that mens rea of offences under sections 489 b and 489 c is knowing or having reason to believe the currency notes or banknotes are forged or counterfeit without the aforementioned mens rea selling buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes is not enough to constitute offence under section 489 b indian penal code so also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under section 489 c in the absence of the mens rea noted above in raghunath singh v state of m p 15 this court held that use of the word know would mean that mens rea of the offender has to be established section 368 speaks of knowledge when it says whoever knowing that any person has been kidnapped or has been abducted wrongfully conceals or confines such person the indian penal code uses two different expressions in its different parts sometimes the gist of the offence is dependant on knowledge and the words knowing or knowingly are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established sometimes see for example sections 212 411 etc the expression has reason to believe is used the words knowing or knowingly are obviously more forceful than the words has reason to believe because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly it is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed when these words are used something more than suspicion or reason for belief is required before an offence under section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted 25 therefore in the present case the state had to show that the forest produce was illicitly removed or was illicitly in the possession of the accused and in either case that the same was within his knowledge this foundational 151967 jlj 234 sc 18 fact as previously discussed has to be proved beyond reasonable doubt thereafter the accused has to establish a credible or reasonable explanation 26 the state no doubt has led evidence to show that the goods seized bore the labels of the appellant s firm and further that no transport licence was available however this per se does not establish illicit possession of forest produce within his knowledge for a court to so conclude the prosecution had to in addition prove beyond reasonable doubt the foundational fact that the accused had knowingly removed the forest produce illicitly it is here that the presumption under section 69 cannot apply it merely directs a presumption that the forest produce belongs to the government 27 in the opinion of the court the impugned judgment by reversing the decision of the sessions court is in error the sessions court had clearly recorded that the appellant s explanation that as l 4 central excise licence holders they were absolved of any responsibility in relation to observance of any other law was misplaced and wholly inadequate the appellant could legitimately bring into existence an excisable produce but that did not absolve them of the liability to follow other obligations in regard to procurement of regulated or controlled commodities or even other aspects relating to them such as licensing or permissions to store transport them etc the appellant had produced documents in the form of 45 invoices and receipts to show the origin of the goods and where they were purchased from to say that they were procured in 104 transactions the question therefore is whether by operation of section 27 1 d the initial presumption was established the evidence on record showed that the cartons seized from the airport were bound to destinations in germany france spain etc the state s main argument is that there was no prior permission or clearance as required by the rules apart from stating that the invoices and other documents could not be verified the state made no effort to establish independently in its evidence that any such effort 19 was made the receipts or primary evidence produced by the appellant was not exhibited in the court nor was any evidence led to show that in fact such effort to trace the sellers of the oil was made by the state and that the evidence furnished by the appellant was unbelievable in these circumstances it could not be said that the state had discharged its burden of proving beyond any doubt that the appellant had knowledge of the fact that the goods were illicit in origin 28 the high court in our opinion fell into error in holding that the presumption that the seizure of forest produce belonging to the state automatically can result in a presumption of culpable mental state of the accused in other words that seizure of the goods ipso facto meant that the appellant had conscious knowledge about their illicit nature or origin or that the accused s inability to account for a transit pass implied that they procured the goods illegally thus attracting section 27 such a leap of reasoning is not justified given that the appellants had furnished a series of documents explaining how they had sourced the oil in question the state s absence of diligence in producing those materials which were in its possession and proving that they were without credibility cannot result in a conviction nor could the court have concluded adversely that the appellant s participation in the auction of the seized goods and their purchase implicated them there can be several reasons for such a conduct including their wish to fulfil contractual obligations 29 this court is of the opinion that the interference by the high court with the acquittal recorded by the sessions court in this case is not warranted ghure lal supra no doubt reviewed the consistent law declared that an appellate court should not interfere with the findings of the trial court merely because it prefers a plausible view unless there are compelling reasons for it to do so it is precisely in such cases where appellate interference is unwarranted that the state is entitled to appeal to the high court under the criminal 20 procedure code 1973 16 however the facts reveal otherwise one the high court concluded incorrectly that the result of section 69 is a presumption that places the reverse burden of proof in respect of an offence no such inference can be drawn from the plain text of that provision and two section 27 1 d requires conscious knowledge of the nature of the goods i e their illicit origin which compels proof by the prosecution beyond reasonable doubt as explained earlier the materials on the record show that the evidence in the possession of the defence and furnished to the state was not even produced in court nor was the primary evidence to substantiate the state s contentions in that regard proved 30 in view of the above discussion this court is of opinion that the impugned judgment is in error it is accordingly set aside the appeal succeeds and is allowed but with no order on costs j indira banerjee j s ravindra bhat new delhi october 06 2021 16 the relevant provision is as follows 378 appeal in case of acquittal 1 save as otherwise provided in sub section 2 and subject to the provisions of sub sections 3 and 5 the state government may in any case direct the public prosecutor to present an appeal to the high court from an original or appellate order of acquittal passed by any court other than a high court or an order of acquittal passed by the court of session in revision 1 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 834 of 2009 bharath booshan aggarwal appellant s versus state of kerala respondent s j u d g m e n t s ravindra bhat j 1 this appeal by special leave questions a judgment of the kerala high court1 reversing the judgment of the learned sessions judge and consequently restoring the conviction and sentence of 3 years imprisonment for the offence punishable under section 27 of the kerala forest act hereafter the act 2 the first appellant is a partner of the appellant s firm and claims to be manufacturer and trader of sandalwood oil on 4 january 1994 upon receipt of information officials of the kerala forest department seized 37 cartons containing 460 kgs of sandalwood oil at karipur airport belonging to the appellants later a criminal complaint was filed by the state wherein it was alleged that the appellants premises were searched in the course of investigation which in turn yielded in seizure of another 73 6 kgs of sandalwood oil the appellant resisted the charges of illegal possession of forest produce and its movement stating that they processed and manufactured sandalwood oil which was then exported to four different countries the 1dated 19 12 2008 in crl a no 556 2001 2 complaint filed by the kerala forest department alleged that sandalwood oil was a forest produce and without a transit licence its movement too was illegal 3 in the criminal proceedings which ensued after initiation of the complaint the appellant denied criminal responsibility arguing among others that sandalwood oil was not a forest produce and rather that sandalwood was it was urged that regardless of this a valid and subsisting licence authorized the appellant to manufacture sandalwood oil the prosecution examined four witnesses the appellant relied on the testimony of two defense witnesses after considering the materials on record the judicial magistrate thamarasserry hereafter the trial court by judgment2 convicted the appellant as charged and sentenced him to pay rs 2000 as fine and undergo rigorous imprisonment for three years under section 27 1 d of the act and six months under rule 3 iii read with rule 23 of the kerala forest produce transit rules hereafter the rules 4 aggrieved by the conviction recorded and sentence imposed on him the appellant approached the court of session kozhikode division hereafter the sessions court which by its judgment3 upset the findings of the trial court the sessions court accepted the appellant s plea and held that in view of the certificate issued by the central excise authorities his possession of sandalwood oil in the factory could not be termed as illegal and that a conviction under section 27 could be recorded only if it was found that sandalwood oil was removed illegally or without authorization from any reserve forest or area proposed to be constituted as reserve forest 5 aggrieved by the appellant s acquittal and in view of the findings of the learned sessions judge the state appealed the high court which considered this appeal reversed the judgment of the sessions court on two counts it was 2 dated 19 08 1997 3dated 20 11 2000 3 held by the impugned judgment that though the appellants held a licence to manufacture sandalwood oil nevertheless they failed to account for possession of such a large quantity of sandalwood oil when charged with commission of the offence in question the accused concerned or individual was bound to show a proper account of the raw materials collected and used to manufacture sandalwood oil relying upon the testimony of pw 4 who had stated that the accused failed to furnish the dates and details regarding procurement of crude sandalwood and crude sandalwood oil popularly known as red oil the court held that during the trial too the appellant had failed to give any particulars with respect to persons from whom purchase of these raw materials were made the failure of the defence to explain this vital aspect rendered the findings of the sessions court vulnerable taking note of section 69 of the act which mandated a presumption of culpability in the event possession was found in any given case the high court held that the accused should have given an account regarding the raw materials collected and used noting the state s submission that to manufacture 5430 kilos of sandalwood oil at least 5600 kilograms of crude sandalwood oil was required which in turn needed to be extracted from at least 200 metric tons of sandalwood the high court concluded that the reliance on the manufacturing licence alone to explain the possession of sandalwood oil did not in any manner absolve the appellant of criminal responsibility 6 the high court also relied upon a decision of this court in ghure lal v state of uttar pradesh4to say that the appellate court can interfere with the order of acquittal only for substantial and compelling reasons it was held that there were no compelling or substantial reasons justifying interference by the sessions court of the appellant s conviction the high court thereafter concluded by observing that a purposive interpretation of the act had to be given in view of the underlying objects which were for the general public good 4 2008 10 scc 450 4 7 it is argued on behalf of the appellant by mr ranjit kumar learned senior counsel that the high court failed to appreciate that an offence is said to be committed only when the article in question is forest produce relying on the definition of that term in the act it was submitted that section 2 f i 5 specifically states that sandalwood is one such produce the reference to wood oil cannot therefore be said to include sandalwood oil the appellants counsel relied on the decisions of this court in suresh lohiya v state of maharashtra6 and the recent ruling in standard essential oil industries v forest range officer7 to urge that courts cannot expand the scope of a legislation departing from its text especially if it entails fastening of criminal liability 8 it was argued that as the appellant proved that he held a valid licence to manufacture sandalwood oil out of red oil no offence was made out it was argued that acquisition of raw materials was established through the documents maintained by the appellant in accordance with the procedure prescribed by the central excise rules 1944 there could resultantly have been no inference of illegality committed in the possession of sandalwood oil mr ranjit kumar said that the high court fell into the error in not appreciating that the appellants had duly maintained the register containing information as to where and how raw material required for manufacture of the sandalwood oil was obtained and that in the absence of any evidence to the contrary by the individuals or firms which had supplied such raw material no presumption could be drawn that the 5 section 2 f reads as follows f forest produce includes i the following whether found in or brought from a forest or not that is to say timber charcoal wood oil gum resin natural varnish bark lac fibres and roots of sandal wood and rosewood and ii the following when found in or brought from a forest that is to say a trees and leaves flowers and fruits and all other parts or produce not hereinbefore mentioned of trees b plants not being trees including grass creepers reeds and moss and all parts or produce of such plants and c silk cocoons honey and wax d peat surface soil rock and minerals including limestone laterite minerals oils and all products of mines or quarries 6 1996 10 scc 397 7 2018 16 scc 180 5 finished product originated from illegally procured sandalwood or red oil extracted from sandalwood it was pointed out that the appellants had in the course of their business relied on the licence to manufacture sandalwood oil and had been exporting it through proper channels for several years this resulted in valuable acquisition of foreign exchange to the country had there been any illegality such exports would have ceased a long time back 9 learned counsel submitted that the high court failed to consider the distinction between section 27 and section 69 of the act it was emphasised that section 69 refers to only forest produce whereas section 27 refers to forest produce illegally removed from a reserve forest the high court convicted the appellant holding that the presumption under section 69 applied the appellant had in fact discharged the burden placed upon them by producing registers maintained regarding details of individuals and firms from whom they had purchased the red oil therefore the prosecution was under a duty to prove that such entries were false having been maintained in the ordinary course of business the courts especially the trial court and the high court failed to consider that the prosecution was unable to establish that the source of the sandalwood oil and therefore the basis for its possession was illegal 10 highlighting that section 27 applied only where the court found that when a firm or concern knowingly receives or has possession of any forest produce illicitly removed learned senior counsel urged that the prosecution in this case failed to prove either the prosecution never alleged that the appellant had knowingly received or were in possession of any forest produce illicitly removed from the reserve forest likewise it was not its case that any forest produce had been illegally removed from the reserve forest and that any proceedings were pending for that purpose learned counsel submitted that the courts below failed to appreciate that the complaint did not allege illicit removal of forest produce from the reserve forest likewise the evidence of the four witnesses showed that none of them remotely suggested that the forest produce 6 found had been illicitly removed from the reserve forest accordingly the elements making up the offence under section 27 1 d of the act had not been proved 11 it was urged that section 69 enacts a presumption that forest produce is deemed to be a property of the government where ownership is disputed at the same time section 27 1 d makes it an offence where anyone is in conscious possession of forest produce which is illicitly removed from a reserve forest in this context it was argued that the appellant s firm holds a valid l 4 licence issued by central excise authorities to manufacture sandalwood oil registration of the appellant s firm under the kerala general sales tax act 1963 and central sales tax act 1956 was established the firm had no infrastructure to manufacture sandalwood oil from sandalwood therefore it is apparent that the department did not lead any evidence to prove that the forest produce involved was in fact illicitly removed the firm was entitled to possess and deal with sandalwood oil in its godown and elsewhere by no stretch of imagination therefore could it be said that possession of sandalwood oil in the firm s godown as well as in the airport was illegal or unauthorised furthermore the learned senior counsel submitted that if the appellant had indulged in any illegality with respect to procurement of the raw materials their exports would not have been permitted 12 the state argues that this court should not interfere with the findings and conviction recorded by the impugned judgment its counsel mr c sashi submits that there can be no debate as to whether sandalwood oil is a forest produce learned counsel relied upon the judgment of this court reported as forest range officer v p mohammed ali8 and submitted that the decision later rendered in standard essential oil industries supra in fact emphatically states that forest produce as defined in the act includes sandalwood oil 81993 supp 3 scc 627 7 learned counsel for the state submits that once there is no dispute with respect to possession of sandalwood oil as in this case the onus clearly lay upon the appellant to prove that such possession was lawful that the forest produce was procured through legitimate sources and not in a manner contrary to law 13 learned counsel argued that the mere statement on the part of the appellant that they used to deal in sandalwood oil processed or produced from red oil as the raw material which in turn was extracted from sandalwood was insufficient to discharge the initial burden placed upon them by law counsel highlighted that once their possession of the forest produce was established the appellant relied upon certain entries in the central excise registers and other records to explain that the source of such articles were legitimate by themselves such documents were insufficient the presumption under section 69 operated firstly after the state established possession of forest produce in this case sandalwood oil is a forest produce the seizure of the appellant s sandalwood oil at the airport and the subsequent search and seizure of 73 6 kgs of sandalwood oil from their premises resulted in the discharge of the foundational onus that lay upon the state therefore section 69 and the presumption enacted by it were attracted the burden was then shifted to the appellant to establish that the forest produce was sourced legitimately and that they had a lawful right to the articles it was reiterated that this burden could not be simply discharged by stating that some traders had supplied varying quantities of red oil the traders or some of them should have stepped into the witness box and proved that the statements made by the appellant was correct the appellant only relied on the invoices and the registers which were inadequate and did not provide all the details for a proper verification the trial court observed that these facts were established by the deposition of the investigating officer in the circumstances it could not be said that the appellant had discharged the burden of proving that the forest produce was legitimately secured or sourced by them and that its possession was legal 8 14 learned counsel relied upon the ruling of this court in ghure lal supra to argue that if the appellate court reverses the conviction unreasonably without any compelling reason and contrary to record based upon a misappreciation of evidence or the law the high court can interfere with such findings on the basis of all these submissions the state urges that this court should dismiss the appeal and confirm the conviction recorded by the trial court relevant provisions of the act 15 section 2 f defines forest and states 2 f forest includes i the following whether found in or brought from a forest or not that is to say timber charcoal wood oil gum resin natural varnish bark lac fibres and roots of sandalwood and rosewood and ii the following when found in or brought from a forest that is to say a trees and leaves flowers and fruits and all other parts or produce not here in before mentioned of trees b plants not being trees including grass creepers reeds and moss and all parts or produce of such plants c silk cocoons honey and wax and d peat surface soil rock and minerals including lime stone laterite mineral oils and all products of mines or quarries section 27 reads as follows 27 1 any person who a does any act prohibited by section 7 or b sets fire to a reserved forest or kindles or leaves burning any fire in such manner as to endanger the same or c sets fire to jungles or forests other than reserved forests and a land proposed to be constituted a reserved forest without taking precautionary measures to prevent the spread of fire into reserved forest and land proposed to be constituted a reserved forest or d knowingly receives or has in possession any forest produce illicitly removed from a reserved forest or a land proposed to be constituted a reserved forest or 9 e in a reserved forest or in a land proposed to be constituted a reserved forest i cultivates or clears or breaks up any land for cultivation or for any other purpose or puts up any shed or other structures or plant trees or ii damages alters or removes any wall ditch embankment fence hedge or railing or iii cuts of fells any trees or girdles marks lops taps uproots burns saws converts or removes any tree including fallen or felled or strips off the bark or leaves from or otherwise damages the same iv trespasses or pastures cattle or permits or causes cattle to trespass or v quarries stones burns lime or charcoal or collects or subject to any manufacturing process or removes any forest produce or vi causes any damage by negligence in felling any tree reed or cutting or dragging any timber shall be punished with imprisonment for a team which shall not be less than one year but may extend to five years and with fine which shall not be less than one thousand rupees but may extend to five thousand rupees in addition to such compensation for damage done to the forest as the convicting court may direct to be paid section 69 is in the following terms 69 when in any proceedings taken under this act or in consequence of anything done under this act a question arises as to whether any forest produce is the property of the central or state government such produce shall be presumed to be the property of the central or state government as the case may be until the contrary is proved 16 rule 3 of the rules prescribes that no one can import or export timber or other forest produce or transport it unless a pass as prescribed by the rules accompanies its movement rule 3 3 prescribes the procedure for obtaining such a pass rule 23 of the rules prescribes that any contravention of the rules would attract a punishment for a term that can extend to six months or fine that can extend to rupees five hundred or both 17 in forest range officer v p mohammed ali supra the provisions of the act which this court is concerned with in this case i e the kerala forest act were interpreted in the context of a submission that sandalwood oil was not 10 forest produce and that the expression wood oil was referrable to items other than those enumerated such as sandalwood rosewood roots etc and further that wood oil referred to natural products and not those derived through processing this court repelled such an interpretation and held that 6 it must be noted in this context that there are several types of essential oils in india the important ones being sandalwood oil agar wood oil deodar oil and pine oil apart from oleo resin and wood oil derived from exudation from living trees in the forest area these essential oils are obtained from any forest wood sandalwood as observed by the high court is forest produce even its roots thereof are also included as forest produce they are also timber within the meaning of section 2 k of the act the purpose of the act is to conserve forest wealth which is very dear for preservation to maintain ecology forest produce defined under section 2 f is an inclusive definition it is settled law that the word include is generally used as a word of extension when used in an interpretation clause it seeks to enlarge the meaning of the words or phrases occurring in the body of the statute craies on statute law 7th edition at p 64 stated the construction to be adopted to the meanings of the words and phrases that the cardinal rule for the construction of acts of parliament is that they should be construed according to the intention expressed in the acts themselves if the words of the statute are themselves precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense the words themselves alone do in such a case best declare the intention of the law giver at p 214 it is stated that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning an interpretation clause of the inclusive definition is not meant to prevent the word receiving its ordinary popular and natural sense whenever that word would be properly applicable but to enable the word as used in the act when there is nothing in the context or the subject matter to the contrary to be applied to somethings to which it would not ordinarily be applicable an interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivocal and not so as to disturb the meaning of such as are plain at p 216 it is stated that another important rule with regard to the effect of an interpretation clause is that an interpretation clause is not to be taken as substituting one set of words for another or as strictly defining what the meaning of the term must be under all circumstances but rather as declaring what may be comprehended within the term where the circumstances require that it should be so construed 8 the word include in the definition under section 2 f would show that it did not intend to exclude what would ordinarily and in common 11 parlance be spoken of as wood oil the expression being technical and being part of an inclusive definition has to be construed in its technical sense but in an exhaustive manner it cannot be restricted in such a manner so as to defeat the principal object and purpose of the act the process by which the oil is extracted is not decisive as oil may be extracted by natural process of exudation or it may be extracted by subjecting to chemical or mechanical process and sandalwood santalum album is cut into pieces its heartwood and roots of sandalwood trees removed from the forest are used as a raw material at a factory level that too by mechanised process to extract sandalwood oil the purpose for which the oil is used is not decisive therefore the word wood oil used in the act will require purposive interpretation drawing upon the context in which the words are used and its meaning will have to be discovered having regard to the intention and object which legislature seeks to subserve the restricted meaning sought to put up by the accused would frustrate the object and the literal interpretation would defeat the meaning the legislature does not intend to restrict the word wood oil nor do we find any compelling circumstances in the act to give restricted meaning that only oil derived from dipterocarpus trees to be wood oil as contended for the accused and which found acceptance by the learned single judge the purposive interpretation would aid conservation of sandalwood a valuable forest wealth prevent illicit felling and transportation of them and make the manufacturers of sandalwood oil accountable for the possession of sandalwood trees or chips or roots etc incorporation of sandalwood oil ex abundenti cautela in karnataka act and absence thereof in sister acts operating in south india does not detract from giving it its due meaning the expert opinion is only an opinion evidence on either side and does not aid us in interpretation this court in aditya mills ltd v union of india 1988 4 scc 315 did not adopt the dictionary meaning as it may be to some extent delusive guide to interpret entries in central excises and salt act in kishan lal v state of rajasthan 1990 supp scc 742 of which one of us sahai j was a member this court was to consider the word sugar whether under rajasthan agricultural produce marketing act 1961 an agricultural produce it was contended that the khandsari sugar was not an agricultural produce repelling that contention this court held that the word agricultural produce includes all produce whether agricultural horticultural animal husbandry or otherwise as specified in the schedule the legislative power to add or include and define a word even artificially apart the definition which is not exhaustive but inclusive neither excludes any item produced in mills or factories nor it confines its width to produce from soil if that be the construction then all items of animal husbandry shall stand excluded it further overlooks the expression or otherwise as specified in the schedule accordingly it was held that khandsari sugar is an agricultural produce under that act 18 in the other judgment relied on by both parties i e standard essential oil industries supra the issue was whether sandalwood oil could be 12 confiscated by virtue of provisions of section 61a of the kerala forest act 9 this court held that sandalwood oil though a forest produce could not be the subject matter of section 61a in view of its restrictive wording 21 a perusal of the definition of forest produce as given by section 2 f of the act shows that other than timber charcoal firewood it includes wood oil gum resin natural varnish bark roots of sandalwood etc however the use of the specific words timber charcoal firewood and ivory under section 61 a instead of any forest produce or ivory makes it clear that the intention of the legislature in providing armoury under section 61 a is only with regard to certain category specified therein and not for every forest produce as defined under section 2 f of the act undoubtedly sandalwood oil is a forest produce but section 61 a of the act is limited only to the categories specified therein and does not give power of confiscation of sandalwood oil 22 further we find force in the contention of the appellants that section 69 of the act is only a rule of evidence which raises a mandatory presumption that a forest produce unless proved otherwise is a property of the government in case where any proceedings are going on under the act or anything is done under the act the section operates only as a tool to help the government in proving its title to the property but the said section cannot be read as to give any power of confiscation of the property emphasis supplied 19 in suresh lohiya supra this court struck a discordant note drawing a distinction between nature s gifts such as charcoal mahua flowers or minerals and article produced with the aid of human labour which according to it was not included in the definition of forest produce under the act 9that provision i e section 61a was inserted in 1975 by the state assembly and prescribed inter alia the procedure to be followed in cases where the state apart from seizing the forest produce also intended to confiscate the property and the articles used for commission of the offence the material part of section 61a reads as follows 61a confiscation by forest officers in certain cases 1 notwithstanding anything contained in the foregoing provisions of this chapter where a forest offence is believed to have been committed in respect of timber charcoal firewood or ivory which is the property of the government the officer seizing the property under sub section 1 of section 52 shall without any unreasonable delay produce it together with all tools ropes chains boats vehicles and cattle used in committing such offence before an officer authorized by the government in this behalf by notification in the gazette not being below the rank of an assistant conservator of forests hereinafter referred to as the authorized officer 13 7 the legislature having defined forest produce it is not permissible to us to read in the definition something which is not there we are conscious of the fact that forest wealth is required to be preserved but it is not open to us to legislate as what a court can do in a matter like at hand is to iron out cresses it cannot weave a new texture if there be any lacuna in the definition it is really for the legislature to take care of the same 8 we may also state that according to us the view taken by the gujarat high court in fatesang s case is correct because though bamboo as a whole is forest produce if a product commercially new and distinct known to the business community as totally different is brought into existence by human labour such an article and product would cease to be a forest produce the definition of this expression leaves nothing to doubt that it would dot take within its fold an article or thing which is totally different from forest produce having a distinct character may it be stated that where a word or an expression is defined by the legislature courts have to look to that definition the general understanding of it cannot be determinative so what has been stated in strouds judicial dictionary regarding a produce can not be decisive therefore where a product from bamboo is commercially different from it and in common parlance taken as a distinct product the same would not be encompassed within the expression forest produce as defined in section 2 4 of the act despite it being inclusive in nature that bamboo mat is taken as a product distinct from bamboo in the commercial world has not been disputed before us and rightly 20 it is noteworthy that in suresh lohiya supra this court made no reference and did not advert to forest range officer v p mohammed ali supra in suresh lohiya also we notice this court sought to interpret the interplay between forest produce timber and tree and concluded that articles or products created by human toil are not per se forest products this court is of the opinion that the distinction sought to be made defeats the purpose of the act because illegally procured forest produce such as sandalwood rosewood or other rare species and then worked upon resulting in a product predominantly based on the essential forest produce would escape the rigors of the act therefore suresh lohiya cannot be considered a binding authority its dicta should be understood as confined to the facts of that case for these reasons it is held that the impugned judgment so far as it proceeded on the assumption that sandalwood oil is forest produce is based on a correct appreciation of law 14 21 in the present case the appellant did not dispute ownership of the articles seized section 69 of the act enacts presumption that when possession of a forest produce is found with someone that it is deemed to belong to the state or central government now this presumption is a rebuttable one several decisions of this court have said that the burden of proving the foundational facts which will give rise to the presumption is upon the prosecution 10in the present case there is no contest about the fact that the goods were seized from the premises of the appellant and belonged to him the goods seized from the airport were to be shipped to overseas destinations in these circumstances this court is of the opinion that the foundational facts i e possession of the forest produce were proved by the state 22 the next question is whether the appellant proved that the produce was procured properly their case was twofold one that as holder of a central excise licence to manufacture sandalwood oil the prosecution had to fail the appellant had sought to rely on the statutory registers which they were bound to keep it was also submitted that the oil was produced by the appellant from the raw materials i e red oil which they had purchased from many traders for which some 45 invoices were relied upon according to the statement made to the forest authorities at the time of the search and seizure these raw materials were obtained in the course of 104 transactions where smaller quantities of red oil were purchased pw 2 the flying squad officer of the forest department who deposed during the trial in the course of cross examination stated that the cartons were kept in the open in the airport and bore the labels of the appellant firm the witness further stated that the goods were seized because it was not known where they originated from nor where they were bought he also stated that the goods i e sandalwood oil cartons were seized for the reason that documents to show from where they came were not produced the appellants 10noor agha v state of punjab 2008 16 scc 417 bhola singh v state of punjab 2011 1 scc 653 and gangadhar gangaram v state of madhya pradesh judgment dated 5th august 2020 in cr a no 504 2020 15 had alleged that the red oil was purchased for processing from several persons and that particulars had been furnished to the forest authorities pw 4 was silent about verification of these details he stated in cross examination generally that the addresses of the traders who sold the oil to the appellant were provided but incomplete secondly it was urged that the prosecution did not produce any material to support the plea that the appellant s information was suspect or lacked credibility pw 4 had further stated that the appellant purchased the seized goods when they were auctioned by the state after the applications for their release to the accused appellants were dismissed by the court this witness also stated that the yield of sandalwood oil is to the extent of 4 from sandalwood 23 there can be no dispute that sandalwood oil is a forest product however section 27 1 d which enacts the offence and which has been applied in this case points to the offender s conscious mental state when it enacts that whoever knowingly receives or has in possession any major forest produce illicitly removed from a reserved forest would be subjected to the prescribed punishment the presumption under section 69 is with respect to not a conscious mental state or a direction by the legislature that a certain state of affairs is deemed to exist but with respect to ownership of the property i e that it belongs to the state unless the contrary is proved 24 this is a significant aspect because unlike some statutes11 the act in the present case does not create a presumption about a culpable mental state of the 11for example income tax act 1961 section 278e 1 in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution explanation in this sub section culpable mental state includes intention motive or knowledge of a fact or belief in or reason to believe a fact 2 for the purposes of this section a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability 16 alleged offender instead the nature of the presumption is that it relates to the ownership of the forest produce this important aspect has a bearing on the matter whether an offence can be said to have been committed without the necessary mens rea has often arisen for consideration generally there is a presumption that mens rea is an essential ingredient in every offence yet that presumption can be displaced either by the phraseology of the law creating the offence or by the subject matter with which it deals both must be considered 12 this court in nathulal v state of madhya pradesh13 in that context observed as follows mens rea is an essential ingredient of a criminal offence doubtless a statute may exclude the element of mens rea but it is a sound rule of construction adopted in england and also accepted in india to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea the mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence mens rea by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated the nature of the mens rea that would be implied in a statute creating an offence depends on the object of the act and the provisions thereof umashanker v state of chhattisgarh14 underlined the existence of mens rea as follows section 10e of the essential commodities act is as follows 10e presumption of culpable mental state 1 in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution explanation in this section culpable mental state includes intention motive knowledge of a fact and the belief in or reason to believe a fact 2 for the purposes of this section a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability 12sherras v de rutzen 1895 1 qb 918 state of maharashtra v mayer hans george1965 1 scr 123 13air 1966 sc 43 14 2001 9 scc 642 17 7 sections 489 a to 489 e deal with various economic offences in respect of forged or counterfeit currency notes or banknotes the object of the legislature in enacting these provisions is not only to protect the economy of the country but also to provide adequate protection to currency notes and banknotes the currency notes are in spite of growing accustomedness to the credit card system still the backbone of the commercial transactions by the multitudes in our country but these provisions are not meant to punish unwary possessors or users 8 a perusal of the provisions extracted above shows that mens rea of offences under sections 489 b and 489 c is knowing or having reason to believe the currency notes or banknotes are forged or counterfeit without the aforementioned mens rea selling buying or receiving from another person or otherwise trafficking in or using as genuine forged or counterfeit currency notes or banknotes is not enough to constitute offence under section 489 b indian penal code so also possessing or even intending to use any forged or counterfeit currency notes or banknotes is not sufficient to make out a case under section 489 c in the absence of the mens rea noted above in raghunath singh v state of m p 15 this court held that use of the word know would mean that mens rea of the offender has to be established section 368 speaks of knowledge when it says whoever knowing that any person has been kidnapped or has been abducted wrongfully conceals or confines such person the indian penal code uses two different expressions in its different parts sometimes the gist of the offence is dependant on knowledge and the words knowing or knowingly are used to indicate that knowledge as such must be proved either by positive evidence or circumstantially before mens rea can be established sometimes see for example sections 212 411 etc the expression has reason to believe is used the words knowing or knowingly are obviously more forceful than the words has reason to believe because they insist on a greater degree of certitude in the mind of the person who is said to know or to do the act knowingly it is not enough if the evidence establishes that the person has reason to suspect or even to believe that a particular state of affairs existed when these words are used something more than suspicion or reason for belief is required before an offence under section 368 could be brought home it must be established that accused knew that the person had been kidnapped or abducted 25 therefore in the present case the state had to show that the forest produce was illicitly removed or was illicitly in the possession of the accused and in either case that the same was within his knowledge this foundational 151967 jlj 234 sc 18 fact as previously discussed has to be proved beyond reasonable doubt thereafter the accused has to establish a credible or reasonable explanation 26 the state no doubt has led evidence to show that the goods seized bore the labels of the appellant s firm and further that no transport licence was available however this per se does not establish illicit possession of forest produce within his knowledge for a court to so conclude the prosecution had to in addition prove beyond reasonable doubt the foundational fact that the accused had knowingly removed the forest produce illicitly it is here that the presumption under section 69 cannot apply it merely directs a presumption that the forest produce belongs to the government 27 in the opinion of the court the impugned judgment by reversing the decision of the sessions court is in error the sessions court had clearly recorded that the appellant s explanation that as l 4 central excise licence holders they were absolved of any responsibility in relation to observance of any other law was misplaced and wholly inadequate the appellant could legitimately bring into existence an excisable produce but that did not absolve them of the liability to follow other obligations in regard to procurement of regulated or controlled commodities or even other aspects relating to them such as licensing or permissions to store transport them etc the appellant had produced documents in the form of 45 invoices and receipts to show the origin of the goods and where they were purchased from to say that they were procured in 104 transactions the question therefore is whether by operation of section 27 1 d the initial presumption was established the evidence on record showed that the cartons seized from the airport were bound to destinations in germany france spain etc the state s main argument is that there was no prior permission or clearance as required by the rules apart from stating that the invoices and other documents could not be verified the state made no effort to establish independently in its evidence that any such effort 19 was made the receipts or primary evidence produced by the appellant was not exhibited in the court nor was any evidence led to show that in fact such effort to trace the sellers of the oil was made by the state and that the evidence furnished by the appellant was unbelievable in these circumstances it could not be said that the state had discharged its burden of proving beyond any doubt that the appellant had knowledge of the fact that the goods were illicit in origin 28 the high court in our opinion fell into error in holding that the presumption that the seizure of forest produce belonging to the state automatically can result in a presumption of culpable mental state of the accused in other words that seizure of the goods ipso facto meant that the appellant had conscious knowledge about their illicit nature or origin or that the accused s inability to account for a transit pass implied that they procured the goods illegally thus attracting section 27 such a leap of reasoning is not justified given that the appellants had furnished a series of documents explaining how they had sourced the oil in question the state s absence of diligence in producing those materials which were in its possession and proving that they were without credibility cannot result in a conviction nor could the court have concluded adversely that the appellant s participation in the auction of the seized goods and their purchase implicated them there can be several reasons for such a conduct including their wish to fulfil contractual obligations 29 this court is of the opinion that the interference by the high court with the acquittal recorded by the sessions court in this case is not warranted ghure lal supra no doubt reviewed the consistent law declared that an appellate court should not interfere with the findings of the trial court merely because it prefers a plausible view unless there are compelling reasons for it to do so it is precisely in such cases where appellate interference is unwarranted that the state is entitled to appeal to the high court under the criminal 20 procedure code 1973 16 however the facts reveal otherwise one the high court concluded incorrectly that the result of section 69 is a presumption that places the reverse burden of proof in respect of an offence no such inference can be drawn from the plain text of that provision and two section 27 1 d requires conscious knowledge of the nature of the goods i e their illicit origin which compels proof by the prosecution beyond reasonable doubt as explained earlier the materials on the record show that the evidence in the possession of the defence and furnished to the state was not even produced in court nor was the primary evidence to substantiate the state s contentions in that regard proved 30 in view of the above discussion this court is of opinion that the impugned judgment is in error it is accordingly set aside the appeal succeeds and is allowed but with no order on costs j indira banerjee j s ravindra bhat new delhi october 06 2021 16 the relevant provision is as follows 378 appeal in case of acquittal 1 save as otherwise provided in sub section 2 and subject to the provisions of sub sections 3 and 5 the state government may in any case direct the public prosecutor to present an appeal to the high court from an original or appellate order of acquittal passed by any court other than a high court or an order of acquittal passed by the court of session in revision 2183 2019_c a no 005781 005783 2021 1 in the supreme court of india civil appellate jurisdiction civil appeal no s 5781 5783 2021 slp c no s 2020 2022 2019 surya educational and charitable trust appellant s versus m s setia builders engineers and contractors respondent s order with the consent of the parties we have taken up the special leave petition for hearing leave granted mr manoj swarup sr adv appearing for the respondent no 1 states that this court may modify the cost as imposed by the division bench of the high court keeping in view the facts and circumstances of the case we modify the costs which are reduced to rs 3 lakh the costs as reduced will be paid within three weeks from today failing which the application for condonation of delay would be treated as dismissed the appeals are partly allowed in the aforesaid terms by modifying the impugned order 2 it will be open to the parties to request the high court to take up the matter expeditiously pending application s if any also stand disposed of j sanjiv khanna j bela m trivedi new delhi 20th september 2021 1 in the supreme court of india civil appellate jurisdiction civil appeal no s 5781 5783 2021 slp c no s 2020 2022 2019 surya educational and charitable trust appellant s versus m s setia builders engineers and contractors respondent s order with the consent of the parties we have taken up the special leave petition for hearing leave granted mr manoj swarup sr adv appearing for the respondent no 1 states that this court may modify the cost as imposed by the division bench of the high court keeping in view the facts and circumstances of the case we modify the costs which are reduced to rs 3 lakh the costs as reduced will be paid within three weeks from today failing which the application for condonation of delay would be treated as dismissed the appeals are partly allowed in the aforesaid terms by modifying the impugned order 2 it will be open to the parties to request the high court to take up the matter expeditiously pending application s if any also stand disposed of j sanjiv khanna j bela m trivedi new delhi 20th september 2021 2201 2020_t p c no 000195 2020 1 in the supreme court of india civil original jurisdiction ia no 50203 of 2021 in transfer petition s civil no 195 2020 prachi jain petitioner versus shreyansh jain respondent o r d e r heard the learned counsel appearing for the petitioner and the learned senior advocate appearing for the respondent perused the application filed by the respondent by the said application the respondent is seeking a permission to withdraw hindu marriage petition bearing h m a no 2553 of 2019 filed by him in respect of which the prayer for transfer has been made in this petition the learned senior counsel stated that in view of the stay granted by this court in the present petition the respondent cannot move the concerned family court for grant of permission for withdrawal of the petition if the prayer for withdrawal of the petition filed by the respondent is allowed nothing will survive in this petition by taking the statement of the respondent on record that he wants to withdraw the petition as mentioned in ia no 50203 of 2 2021 the present transfer petition is disposed of in the event the respondent without withdrawing the petition tries to prosecute the same or in the event the prayer for withdrawal is disallowed by the concerned family court the petitioner can always apply for revival of this petition j abhay s oka new delhi december 03 2021 1 in the supreme court of india civil original jurisdiction ia no 50203 of 2021 in transfer petition s civil no 195 2020 prachi jain petitioner versus shreyansh jain respondent o r d e r heard the learned counsel appearing for the petitioner and the learned senior advocate appearing for the respondent perused the application filed by the respondent by the said application the respondent is seeking a permission to withdraw hindu marriage petition bearing h m a no 2553 of 2019 filed by him in respect of which the prayer for transfer has been made in this petition the learned senior counsel stated that in view of the stay granted by this court in the present petition the respondent cannot move the concerned family court for grant of permission for withdrawal of the petition if the prayer for withdrawal of the petition filed by the respondent is allowed nothing will survive in this petition by taking the statement of the respondent on record that he wants to withdraw the petition as mentioned in ia no 50203 of 2 2021 the present transfer petition is disposed of in the event the respondent without withdrawing the petition tries to prosecute the same or in the event the prayer for withdrawal is disallowed by the concerned family court the petitioner can always apply for revival of this petition j abhay s oka new delhi december 03 2021 2211 2020_c a no 005122 005122 2021 the high court the high court the karnataka state administrative tribunal 2018 12 17 5122 of 2021 1 reportable in the supreme court of india civil appellate jurisdiciton civil appeal no 5122 of 2021 the director of treasuries in karnataka anr appellants versus v somyashree respondent j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment and order dated 17 12 2018 passed by the high court of karnataka at bengaluru in writ petition no 5609 2017 by which the high court has allowed the said writ petition preferred by the respondent herein and has 2 quashed and set aside the order dated 09 12 2015 passed by the karnataka state administrative tribunal bengaluru in application no 6396 of 2015 and consequently has directed the appellants herein to consider the application of the respondent herein original writ petitioner hereinafter referred to as original petitioner for grant of compassionate appointment the original respondent has preferred the present appeal 2 the facts leading to the present appeal in nutshell are as under that one smt p bhagyamma the mother of the original writ petitioner was employed with the government of karnataka as second division assistant at mandya district treasury she died on 25 03 2012 that original writ petitioner who at the relevant time was a married daughter at the time when the deceased smt p bhagyamma died initiated a divorce proceedings for divorce by mutual consent under section 13b of the hindu marriage act 1955 on 12 09 2012 by its judgment and decree dated 20 03 2013 a 3 decree of divorce by mutual consent was passed by the learned principal senior civil judge cjm mandya on the very next day i e on 21 03 2013 the original writ petitioner submitted an application to appoint her on compassionate ground on the death of her mother by order dated 03 05 2013 the application for appointment on compassionate appointment came to be rejected on the ground that there is no provision provided under rule 3 2 ii of karnataka civil services appointment on compassionate grounds rules 1996 hereinafter referred to as the rules 1996 for divorced daughter that the original writ petitioner made an application before the karnataka state administrative tribunal being application no 6396 of 2015 on 20 07 2015 i e after a period of approximately 2 years from the date of rejection of her application for appointment on compassionate ground the learned tribunal dismissed the said application by order dated 09 12 2015 on the ground that there is no provision for appointment on compassionate ground for divorced daughter thereafter the original writ petitioner 4 approached the high court against the order dated 09 12 2015 passed by the learned administrative tribunal bengaluru 3 by impugned judgment and order dated 17 12 2018 the high court has allowed the writ petition no 5609 of 2017 and has quashed and set aside the order dated 09 12 2015 passed by the karnataka administrative tribunal bengaluru in application no 6393 of 2015 and has directed the appellants herein to consider the application of the original writ petitioner for grant of compassionate appointment based on the observations made in the impugned judgment and order by the impugned judgment and order the high court has interpreted rule 3 of the rules 1996 and has observed that a divorced daughter would fall in the same class of an unmarried or widowed daughter and therefore a divorced daughter has to be considered on par with unmarried or widowed daughter 5 3 1 feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court the appellants have preferred the present appeal 4 shri v n raghupathy learned advocate appearing on behalf of the state has vehemently submitted that in the facts and circumstances of the case the high court has materially erred in quashing and setting aside the order passed by the learned tribunal and has erred in directing the appellants to consider the application of the writ petitioner for grant of compassionate appointment 4 1 it is submitted that the directions issued by the high court directing the appellants to consider the application of the original writ petitioner for grant of compassionate appointment is just contrary to rule 3 of rules 1996 it is submitted that as per rule 3 of the rules 1996 only unmarried and widowed daughter shall be entitled to and or eligible for the appointment on compassionate ground in the case of the deceased female government servant it is submitted that rule 3 2 ii of rules 1996 does not include 6 the divorced daughter for grant of compassionate appointment in the case of the deceased female government servant 4 2 it is further submitted that even as per the definition of dependent as defined in rule 2 of the rules 1996 in case of deceased female government servant her widower son unmarried daughter or widowed daughter who were dependent upon her and were living with her can be said to be dependent it is submitted that the divorced daughter is not included within the definition of dependent 4 3 it is submitted that therefore the directions issued by the high court directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as a divorced daughter is beyond rule 2 and rule 3 of the rules 1996 4 4 it is submitted that even otherwise it has not been established and proved that the respondent herein was dependent upon the deceased employee and was living with her at the time of her death 7 4 5 it is further submitted that even otherwise the high court has committed a grave error in not appreciating the fact that the deceased employee died on 25 03 2012 and that thereafter immediately the respondent initiated a divorced proceedings under section 13b of the hindu marriage act 1955 on 12 09 2012 and obtained a decree for divorce by mutual consent dated 20 03 2013 and immediately on the very next day submitted that application for appointment on compassionate ground on 21 03 2013 it is submitted that the aforesaid facts would clearly demonstrate that only for the purpose of getting the appointment on compassionate ground she obtained the divorce by mutual consent it is submitted that the high court has not at all considered the aforesaid aspects 5 7 reliance is placed on the decision of this court in the case of n c santhosh vs state of karnataka and ors 2020 7 scc 617 in support of the submission that the appointment on compassionate ground only be as per the scheme and the policy 8 5 8 making the above submissions it is prayed to allow the present appeal 6 present appeal is vehemently opposed by shri mohd irshad hanif learned advocate for the respondent original writ petitioner 6 1 it is submitted that in the facts and circumstances of the case the high court has rightly interpreted rule 3 and the object and purpose by which rule 3 was amended in the year 2000 by which the words unmarried daughter and widowed daughter came to be included within the definition of dependent in rule 3 it is submitted that the high court has rightly observed that the intention and the rule making authority in adding unmarried or widowed daughter to the definition of dependent is very clear it is submitted that the high court has rightly observed that divorced daughter would fall in the same class of unmarried or widowed daughter it is submitted that while interpreting rule 3 of the rules 1996 the high court has adopted the purposive meaning 9 6 2 it is submitted that even subsequently and as per the karnataka civil services appointment on compassionate grounds amendment rules 2021 the divorced daughter also shall be eligible for appointment on compassionate ground in the case of the deceased government servant it is submitted that therefore the interpretation made by the high court by the impugned judgment is absolutely in line with the amended rules 2021 by which now even divorced daughter also shall be entitled the appointment on compassionate ground in the case of the deceased servant 6 3 making the above submissions it is prayed to dismiss the present appeal 7 while considering the submissions made on behalf of the rival parties a recent decision of this court in the case of n c santhosh supra on the appointment on compassionate ground is required to be referred to after considering catena of decisions of this court on appointment on compassionate grounds it is observed and held that appointment to any public post in the service of the state has to be made on the 10 basis of principles in accordance with articles 14 and 16 of the constitution of india and the compassionate appointment is an exception to the general rule it is further observed that the dependent of the deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the state s policy it is further observed and held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment a dependent of a government employee in the absence of any vested right accruing on the death of the government employee can only demand consideration of his her application it is further observed he she is however entitled to seek consideration in accordance with the norms as applicable on the day of death of the government employee the law laid down by this court in the aforesaid decision on grant of appointment on compassionate ground can be summarized as under 11 i that the compassionate appointment is an exception to the general rule ii that no aspirant has a right to compassionate appointment iii the appointment to any public post in the service of the state has to be made on the basis of the principle in accordance with articles 14 and 16 of the constitution of india iv appointment on compassionate ground can be made only on fulfilling the norms laid down by the state s policy and or satisfaction of the eligibility criteria as per the policy v the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment 8 applying the law laid down by this court in the aforesaid decision to the facts of the case on hand we are of the opinion that as such the high court has gone beyond rule 2 and rule 12 3 of the rules 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter rule 2 and rule 3 of the rules 1996 read as under 2 definitions 1 in these rules unless the context otherwise requires a dependent of a deceased government servant means i in the case of deceased male government servant his widow son unmarried daughter and widowed daughter who were dependent upon him and were living with him and ii in the case of a deceased female government servant her widower son unmarried daughter and widowed daughter who were dependent upon her and were living with her iii family in relation to a deceased government servant means his or her spouse and their son unmarried daughter and widowed daughter who were living with him 2 words and expressions used but not defined shall have the same meaning assigned to them in the karnataka civil services general recruitment rules 1977 6 the eligibility on the death of a female employee is in terms of rule 3 2 ii of the karnataka civil services appointment on compassionate grounds rules 1996 which reads as follows 13 rule 3 2 ii ii in the case of the deceased female government servant a a son b an unmarried daughter if the son is not eligible or for any valid reason he is not willing to accept the appointment c the widower if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment d a widowed daughter if the widower son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment 3 xxx 4 xxx 8 1 from the aforesaid rules it can be seen that only unmarried daughter and widowed daughter who were dependent upon the deceased female government servant at the time of her death and living with her can be said to be dependent of a deceased government servant and that an unmarried daughter and widowed daughter only can be said to be eligible for appointment on compassionate ground in the case of death of the female government servant rule 2 and rule 3 reproduced hereinabove do not include divorced 14 daughter as eligible for appointment on compassionate ground and even as dependent as observed hereinabove and even as held by this court in the case of n c santhosh supra the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment the word divorced daughter has been added subsequently by amendment 2021 therefore at the relevant time when the deceased employee died and when the original writ petitioner respondent herein made an application for appointment on compassionate ground the divorced daughter were not eligible for appointment on compassionate ground and the divorced daughter was not within the definition of dependent 8 2 apart from the above one additional aspect needs to be noticed which the high court has failed to consider it is to be noted that the deceased employee died on 25 03 2012 the respondent herein original writ petitioner at that time was a married daughter her marriage was subsisting on the date of the death of the deceased i e on 25 03 2012 immediately on 15 the death of the deceased employee the respondent initiated the divorced proceedings under section 13b of the hindu marriage act 1955 on 12 09 2012 for decree of divorce by mutual consent by judgment dated 20 03 2013 the learned principal civil judge mandya granted the decree of divorce by mutual consent that immediately on the very next day i e on 21 03 2013 the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground the aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained otherwise as a married daughter she was not entitled to the appointment on compassionate ground therefore looking to the aforesaid facts and circumstances of the case otherwise also the high court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter this is one 16 additional ground to reject the application of the respondent for appointment on compassionate ground 8 3 even otherwise it is required to be noted that at the time when the deceased employee died on 25 03 2012 the marriage between the respondent and her husband was subsisting therefore at the time when the deceased employee died she was a married daughter and therefore also cannot be said to be dependent as defined under rule 2 of the rules 1996 therefore even if it is assumed that the divorced daughter may fall in the same class of unmarried daughter and widowed daughter in that case also the date on which the deceased employee died she respondent herein was not the divorced daughter as she obtained the divorce by mutual consent subsequent to the death of the deceased employee therefore also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee 9 in view of the above and for the reasons stated above the appeal succeeds the impugned common judgment and order 17 passed by the high court in writ petition no 5609 2017 is hereby quashed and set aside the writ petition before the high court is dismissed accordingly however there shall be no order as to costs j m r shah j aniruddha bose new delhi september 13 2021 1 reportable in the supreme court of india civil appellate jurisdiciton civil appeal no 5122 of 2021 the director of treasuries in karnataka anr appellants versus v somyashree respondent j u d g m e n t m r shah j 1 feeling aggrieved and dissatisfied with the impugned judgment and order dated 17 12 2018 passed by the high court of karnataka at bengaluru in writ petition no 5609 2017 by which the high court has allowed the said writ petition preferred by the respondent herein and has 2 quashed and set aside the order dated 09 12 2015 passed by the karnataka state administrative tribunal bengaluru in application no 6396 of 2015 and consequently has directed the appellants herein to consider the application of the respondent herein original writ petitioner hereinafter referred to as original petitioner for grant of compassionate appointment the original respondent has preferred the present appeal 2 the facts leading to the present appeal in nutshell are as under that one smt p bhagyamma the mother of the original writ petitioner was employed with the government of karnataka as second division assistant at mandya district treasury she died on 25 03 2012 that original writ petitioner who at the relevant time was a married daughter at the time when the deceased smt p bhagyamma died initiated a divorce proceedings for divorce by mutual consent under section 13b of the hindu marriage act 1955 on 12 09 2012 by its judgment and decree dated 20 03 2013 a 3 decree of divorce by mutual consent was passed by the learned principal senior civil judge cjm mandya on the very next day i e on 21 03 2013 the original writ petitioner submitted an application to appoint her on compassionate ground on the death of her mother by order dated 03 05 2013 the application for appointment on compassionate appointment came to be rejected on the ground that there is no provision provided under rule 3 2 ii of karnataka civil services appointment on compassionate grounds rules 1996 hereinafter referred to as the rules 1996 for divorced daughter that the original writ petitioner made an application before the karnataka state administrative tribunal being application no 6396 of 2015 on 20 07 2015 i e after a period of approximately 2 years from the date of rejection of her application for appointment on compassionate ground the learned tribunal dismissed the said application by order dated 09 12 2015 on the ground that there is no provision for appointment on compassionate ground for divorced daughter thereafter the original writ petitioner 4 approached the high court against the order dated 09 12 2015 passed by the learned administrative tribunal bengaluru 3 by impugned judgment and order dated 17 12 2018 the high court has allowed the writ petition no 5609 of 2017 and has quashed and set aside the order dated 09 12 2015 passed by the karnataka administrative tribunal bengaluru in application no 6393 of 2015 and has directed the appellants herein to consider the application of the original writ petitioner for grant of compassionate appointment based on the observations made in the impugned judgment and order by the impugned judgment and order the high court has interpreted rule 3 of the rules 1996 and has observed that a divorced daughter would fall in the same class of an unmarried or widowed daughter and therefore a divorced daughter has to be considered on par with unmarried or widowed daughter 5 3 1 feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high court the appellants have preferred the present appeal 4 shri v n raghupathy learned advocate appearing on behalf of the state has vehemently submitted that in the facts and circumstances of the case the high court has materially erred in quashing and setting aside the order passed by the learned tribunal and has erred in directing the appellants to consider the application of the writ petitioner for grant of compassionate appointment 4 1 it is submitted that the directions issued by the high court directing the appellants to consider the application of the original writ petitioner for grant of compassionate appointment is just contrary to rule 3 of rules 1996 it is submitted that as per rule 3 of the rules 1996 only unmarried and widowed daughter shall be entitled to and or eligible for the appointment on compassionate ground in the case of the deceased female government servant it is submitted that rule 3 2 ii of rules 1996 does not include 6 the divorced daughter for grant of compassionate appointment in the case of the deceased female government servant 4 2 it is further submitted that even as per the definition of dependent as defined in rule 2 of the rules 1996 in case of deceased female government servant her widower son unmarried daughter or widowed daughter who were dependent upon her and were living with her can be said to be dependent it is submitted that the divorced daughter is not included within the definition of dependent 4 3 it is submitted that therefore the directions issued by the high court directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as a divorced daughter is beyond rule 2 and rule 3 of the rules 1996 4 4 it is submitted that even otherwise it has not been established and proved that the respondent herein was dependent upon the deceased employee and was living with her at the time of her death 7 4 5 it is further submitted that even otherwise the high court has committed a grave error in not appreciating the fact that the deceased employee died on 25 03 2012 and that thereafter immediately the respondent initiated a divorced proceedings under section 13b of the hindu marriage act 1955 on 12 09 2012 and obtained a decree for divorce by mutual consent dated 20 03 2013 and immediately on the very next day submitted that application for appointment on compassionate ground on 21 03 2013 it is submitted that the aforesaid facts would clearly demonstrate that only for the purpose of getting the appointment on compassionate ground she obtained the divorce by mutual consent it is submitted that the high court has not at all considered the aforesaid aspects 5 7 reliance is placed on the decision of this court in the case of n c santhosh vs state of karnataka and ors 2020 7 scc 617 in support of the submission that the appointment on compassionate ground only be as per the scheme and the policy 8 5 8 making the above submissions it is prayed to allow the present appeal 6 present appeal is vehemently opposed by shri mohd irshad hanif learned advocate for the respondent original writ petitioner 6 1 it is submitted that in the facts and circumstances of the case the high court has rightly interpreted rule 3 and the object and purpose by which rule 3 was amended in the year 2000 by which the words unmarried daughter and widowed daughter came to be included within the definition of dependent in rule 3 it is submitted that the high court has rightly observed that the intention and the rule making authority in adding unmarried or widowed daughter to the definition of dependent is very clear it is submitted that the high court has rightly observed that divorced daughter would fall in the same class of unmarried or widowed daughter it is submitted that while interpreting rule 3 of the rules 1996 the high court has adopted the purposive meaning 9 6 2 it is submitted that even subsequently and as per the karnataka civil services appointment on compassionate grounds amendment rules 2021 the divorced daughter also shall be eligible for appointment on compassionate ground in the case of the deceased government servant it is submitted that therefore the interpretation made by the high court by the impugned judgment is absolutely in line with the amended rules 2021 by which now even divorced daughter also shall be entitled the appointment on compassionate ground in the case of the deceased servant 6 3 making the above submissions it is prayed to dismiss the present appeal 7 while considering the submissions made on behalf of the rival parties a recent decision of this court in the case of n c santhosh supra on the appointment on compassionate ground is required to be referred to after considering catena of decisions of this court on appointment on compassionate grounds it is observed and held that appointment to any public post in the service of the state has to be made on the 10 basis of principles in accordance with articles 14 and 16 of the constitution of india and the compassionate appointment is an exception to the general rule it is further observed that the dependent of the deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the state s policy it is further observed and held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment a dependent of a government employee in the absence of any vested right accruing on the death of the government employee can only demand consideration of his her application it is further observed he she is however entitled to seek consideration in accordance with the norms as applicable on the day of death of the government employee the law laid down by this court in the aforesaid decision on grant of appointment on compassionate ground can be summarized as under 11 i that the compassionate appointment is an exception to the general rule ii that no aspirant has a right to compassionate appointment iii the appointment to any public post in the service of the state has to be made on the basis of the principle in accordance with articles 14 and 16 of the constitution of india iv appointment on compassionate ground can be made only on fulfilling the norms laid down by the state s policy and or satisfaction of the eligibility criteria as per the policy v the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment 8 applying the law laid down by this court in the aforesaid decision to the facts of the case on hand we are of the opinion that as such the high court has gone beyond rule 2 and rule 12 3 of the rules 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter rule 2 and rule 3 of the rules 1996 read as under 2 definitions 1 in these rules unless the context otherwise requires a dependent of a deceased government servant means i in the case of deceased male government servant his widow son unmarried daughter and widowed daughter who were dependent upon him and were living with him and ii in the case of a deceased female government servant her widower son unmarried daughter and widowed daughter who were dependent upon her and were living with her iii family in relation to a deceased government servant means his or her spouse and their son unmarried daughter and widowed daughter who were living with him 2 words and expressions used but not defined shall have the same meaning assigned to them in the karnataka civil services general recruitment rules 1977 6 the eligibility on the death of a female employee is in terms of rule 3 2 ii of the karnataka civil services appointment on compassionate grounds rules 1996 which reads as follows 13 rule 3 2 ii ii in the case of the deceased female government servant a a son b an unmarried daughter if the son is not eligible or for any valid reason he is not willing to accept the appointment c the widower if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment d a widowed daughter if the widower son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment 3 xxx 4 xxx 8 1 from the aforesaid rules it can be seen that only unmarried daughter and widowed daughter who were dependent upon the deceased female government servant at the time of her death and living with her can be said to be dependent of a deceased government servant and that an unmarried daughter and widowed daughter only can be said to be eligible for appointment on compassionate ground in the case of death of the female government servant rule 2 and rule 3 reproduced hereinabove do not include divorced 14 daughter as eligible for appointment on compassionate ground and even as dependent as observed hereinabove and even as held by this court in the case of n c santhosh supra the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment the word divorced daughter has been added subsequently by amendment 2021 therefore at the relevant time when the deceased employee died and when the original writ petitioner respondent herein made an application for appointment on compassionate ground the divorced daughter were not eligible for appointment on compassionate ground and the divorced daughter was not within the definition of dependent 8 2 apart from the above one additional aspect needs to be noticed which the high court has failed to consider it is to be noted that the deceased employee died on 25 03 2012 the respondent herein original writ petitioner at that time was a married daughter her marriage was subsisting on the date of the death of the deceased i e on 25 03 2012 immediately on 15 the death of the deceased employee the respondent initiated the divorced proceedings under section 13b of the hindu marriage act 1955 on 12 09 2012 for decree of divorce by mutual consent by judgment dated 20 03 2013 the learned principal civil judge mandya granted the decree of divorce by mutual consent that immediately on the very next day i e on 21 03 2013 the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground the aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained otherwise as a married daughter she was not entitled to the appointment on compassionate ground therefore looking to the aforesaid facts and circumstances of the case otherwise also the high court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as divorced daughter this is one 16 additional ground to reject the application of the respondent for appointment on compassionate ground 8 3 even otherwise it is required to be noted that at the time when the deceased employee died on 25 03 2012 the marriage between the respondent and her husband was subsisting therefore at the time when the deceased employee died she was a married daughter and therefore also cannot be said to be dependent as defined under rule 2 of the rules 1996 therefore even if it is assumed that the divorced daughter may fall in the same class of unmarried daughter and widowed daughter in that case also the date on which the deceased employee died she respondent herein was not the divorced daughter as she obtained the divorce by mutual consent subsequent to the death of the deceased employee therefore also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee 9 in view of the above and for the reasons stated above the appeal succeeds the impugned common judgment and order 17 passed by the high court in writ petition no 5609 2017 is hereby quashed and set aside the writ petition before the high court is dismissed accordingly however there shall be no order as to costs j m r shah j aniruddha bose new delhi september 13 2021 2266 2018_crl a no 000499 000500 2018 court the high court of chhattisgarh the additional sessions state of madhya pradesh1 a three judge bench of this 2016 02 24 is thus complainant pw 1 gudiya parveen w o pw 2 mohd armaan resided at d 29 4th floor bajrangdheepa colony with her husband and her minor victim daughter aged 3 years at about 10 00 am on 24th february 2016 she had gone downstairs to wash clothes at that time she called her 2 husband for bathing the victim her husband told her that the victim had gone downstairs to play pw 1 then went upstairs and told her husband that the victim was not downstairs thereafter her husband pw 2 and she started looking for the victim but the victim was not found anywhere since the victim could not be found pw 1 went to jutemill police station and lodged a report of the victim going missing they continued the search and ultimately returned to their house at around 03 00 04 00 am in the morning pw 3 mohd sahid alias raju khan told her that appellant lochan shrivas a resident of d 15 in the same building had said that if they would allow him to conduct a worship he could find their c 1952 scr 1091 sarda v state bobade v state chand v state administration v shri another v state pradesh v jeet dugal v state paradkar v state navle v state tripathi v state 1963 sc 74 rajasthan v teja singh v state 2001 sc 330 pandian v state daniel v state mannan v state singh v state others v state another v the singh v state bariyar v state wasnik v state wasnik v state singh v state singh v state bariyar v state sangeet v state sangeet v state sangeet v state singh v state 35 we have gone through the video movie prepared and after watching the video we are of 23 the view that the recovery of dead body was made from a place which cannot be said to be accessible to an ordinary person without prior knowledge as the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road in the statement under section 313 crpc the accused appellant failed to explain how he came to know that the deceased had been murdered and thrown in the shrubs after wrapping her in a gunny bag it could thus be seen that the high court had itself viewed the video and on seeing the same it was of the view that the recovery of the dead body was made from a place which cannot be said to be accessible to an ordinary person without prior knowledge since the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road 36 insofar as the reliance placed by the appellant on the judgment of this court in the case of krishan mohar singh dugal v state of goa8 is concerned in the said case the accused was convicted for the offence punishable under section 20 b ii of the narcotic drugs and psychotropic substances act 1985 solely on the basis of recovery at the 8 1999 8 scc 552 24 instance of the accused on the basis of memorandum statement under section 27 of the evidence act in the said case the recovery was from a place under the coconut tree which was accessible to one and all it was not a case of concealment in a place which was only within the knowledge of the person concealing it in any event in the said case the conviction was solely on the basis of the said recovery and as such was found to be untenable 37 insofar as the reliance placed by the appellant on the judgment of this court in the case of nilesh dinkar paradkar v state of maharashtra9 is concerned in the said case the conviction was solely on the basis of identification by voice and as such was not found to be tenable as such these cases would not be of any assistance to the case of the appellant 38 it has been sought to be urged on behalf of the appellant that from the evidence of pw 9 chameli sarthi it is clear that the police already knew about the place where the dead body was concealed pw 9 had taken the dead body of the deceased to district hospital raigarh it will be 9 2011 4 scc 143 25 apposite to refer to the relevant portion of the deposition of pw 9 we went to the place of incident amlibhowna at 6 a m from the outpost from there we directly went to the hospital with all today i cannot state at what time we left the place of incident amlibhowna the witness now says perhaps we left at 8 9 o clock along with prakash tiwari sub inspector amit patle was also present with me and policemen from other police station were also present two person were going ahead taking the dead body in an auto rickshaw we were following by our bikes pw 9 stated that she went to the place of incident amlibhauna at 06 00 am from the outpost it is to be noted that according to the evidence of pws 1 2 3 and 19 pw 3 informed pw 19 about the incident at around 06 00 am the said information was registered in the rojnamcha at around 06 10 am what is stated by this witness is that she went to amlibhauna which is a locality however that by itself would not be sufficient to come to a conclusion that the police already knew about the place from where the dead body was recovered she stated that she had left for the hospital at around 08 00 09 00 o clock the evidence of a witness cannot be read in piecemeal the evidence has to be 26 read as a whole if the evidence of this witness is read as a whole the attack on her evidence is not justified in any case the recovery of the body on the information given by the appellant is duly proved by the memorandum of the appellant under section 27 of the evidence act ex p 11 and the recovery panchnama ex p 12 that apart the oral testimony of pws 1 2 3 5 and 19 corroborates the same 39 we are therefore of the considered view that the prosecution has proved beyond reasonable doubt that the recovery of the dead body of the deceased on the memorandum of the appellant under section 27 of the evidence act was from a place distinctly within the knowledge of the appellant 40 another circumstance against the appellant is the recovery of the black jeans half pant of the deceased ex p 15 from the dumping area and the gamchha and pillow ex p 16 from the house of the appellant pw 3 is a panch witness to the recovery of black jeans half pant ex p 15 he is also a witness to the spot panchnama ex p 17 where the worship was conducted it is further noted that on the 27 gamchha seized from the house of the appellant blood stains were found much attack has been made by the defence on the ground that the fsl report does not connect the appellant with the said blood found on gamchha to consider this submission we may gainfully refer to the following observations of this court in the case of r shaji v state of kerala10 30 it has been argued by the learned counsel for the appellant that as the blood group of the bloodstains found on the chopper could not be ascertained the recovery of the said chopper cannot be relied upon 31 a failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all sometimes it is possible either because the stain is insufficient in itself or due to haematological changes and plasmatic coagulation that a serologist may fail to detect the origin of the blood in question however in such a case unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity no benefit can be claimed by the accused in this regard once the recovery is made in pursuance of a disclosure statement made by the accused the matching or non matching of blood group s loses significance vide prabhu babaji navle v state of bombay air 1956 sc 51 1956 cri lj 147 raghav prapanna tripathi v state of u p air 1963 sc 74 1963 10 2013 14 scc 266 28 1 cri lj 70 state of rajasthan v teja ram 1999 3 scc 507 1999 scc cri 436 gura singh v state of rajasthan 2001 2 scc 205 2001 scc cri 323 air 2001 sc 330 john pandian v state 2010 14 scc 129 2011 3 scc cri 550 and sunil clifford daniel v state of punjab 2012 11 scc 205 2013 1 scc cri 438 32 in view of the above the court finds that it is not possible to accept the submission that in the absence of a report regarding the origin of the blood the accused cannot be convicted for it is only because of the lapse of time that the blood could not be classified successfully therefore no advantage can be conferred upon the accused to enable him to claim any benefit and the report of disintegration of blood etc cannot be termed as a missing link on the basis of which the chain of circumstances may be presumed to be broken 41 the next circumstance is the finding of the blood stains on the nail clipping of the appellant pw 8 kishore shrivas is a barber he has stated that on being called by the police he cut the nails of both the hands of the appellant the said nails were cut under the panchnama ex p 19 which is signed by the said barber as well as pw 3 the said circumstance is attacked on the ground that the io had not called the forensic team for seizure of the said nails however even if this circumstance is excluded we find that the other circumstances which have been discussed in detail 29 by us in the foregoing paragraphs conclusively bring home the guilt of the appellant 42 the panchnamas are sought to be attacked on the ground that pw 3 is the only panch witness to all these panchnamas we are of the view that this contention deserves no merit in the light of the following observations of this court in the case of himachal pradesh administration supra 10 further having held this it nonetheless said that there was no injunction against the same set of witnesses being present at the successive enquiries if nothing could be urged against them in our view the evidence relating to recoveries is not similar to that contemplated under section 103 of the criminal procedure code where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate in an investigation under section 157 the recoveries could be proved even by the solitary evidence of the investigating officer if his evidence could otherwise be believed we cannot as a matter of law or practice lay down that where recoveries have to be effected from different places on the information furnished by the accused different sets of persons should be called in to witness them in this case pw 2 and pw 8 who worked with the deceased were the proper persons to witness the recoveries as they could identify some of the things that were missing and also they could both speak to the information and the recovery made in consequence thereof as a 30 continuous process at any rate pw 2 who is alleged to be the most interested was not present at the time of the recovery of the dagger 43 we are therefore of the considered view that the prosecution has established the following circumstances beyond reasonable doubt i the victim was reported missing and an fir was lodged in this regard ii the appellant had claimed that he could disclose the whereabouts of the victim by performing a worship iii the said worship came to be conducted by the appellant in the early hours of 25th february 2016 in the presence of pws 1 2 3 and 5 and the appellant disclosed to them that the dead body of the victim was inside a sack in the bushes near a pole beside the road in amlibhauna iv a suspicion arose in the minds of pws 1 2 3 and 5 and they immediately informed the police the said information is recorded in rojnamcha no 2 under ex p 38 v police immediately reached the spot and interrogated the appellant on interrogation a memorandum under section 27 of the evidence act came to be recorded 31 vi on the basis of memorandum of the appellant under section 27 of the evidence act the dead body of the victim ex p 12 was recovered from a sack which was concealed by the appellant under the bushes from a place distinctly within his knowledge and vii on a memorandum of the appellant under section 27 of the evidence act a black jeans half pant of the victim ex p 15 and a gamchha of the appellant ex p 16 were recovered from the dumping area behind d block in nagar nigam colony and the house of the appellant respectively 44 we are of the considered view that the aforesaid proven circumstances establish a chain of circumstances which leads to no other conclusion than the guilt of the appellant apart from that in the statement recorded under section 313 cr p c though all these incriminating circumstances have been put to the appellant he has not offered any explanation except saying that it is wrong and false in this respect we may refer to the following observations of this court in the case of sharad birdhichand sarda supra 32 151 it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence this is trite law and no decision has taken a contrary view what some cases have held is only this where various links in a chain are in themselves complete then a false plea or a false defence may be called into aid only to lend assurance to the court in other words before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity it is not the law that where there is any infirmity or lacuna in the prosecution case the same could be cured or supplied by a false defence or a plea which is not accepted by a court 45 it is trite law that though the false explanation cannot be taken to complete a missing link in the chain of circumstances it can surely be taken to fortify the conclusion of conviction recorded on the basis of the proven incriminating circumstances we find that the non explanation of the circumstances would fortify the finding which is based on the chain of incriminating circumstances that leads to no other conclusion than the guilt of the appellant 46 an important aspect arises for consideration in the present appeals so also in the various other appeals where the accused is not given an appropriate opportunity of 33 defending the case in the present case we find that the charges were framed on 6th may 2016 on 6th june 2016 the accused appeared before the court and submitted that he was not competent to engage a lawyer at his own cost as such the trial judge appointed shri kamlesh saraf from the panel as the lawyer to represent the accused immediately on the next day the evidence of pws 3 to 7 were recorded the trial judge passed the judgment and order of conviction on 17th june 2016 and also awarded death penalty on the same day we find that though a speedy trial is desirable however sufficient time ought to have been given to the counsel for the accused to prepare for the case after he was appointed even insofar as the award of sentence is concerned some period ought to have been given between the date of conviction and the award of sentence specifically when a death penalty was awarded however from the evidence which we have scrutinized in depth we do not find that any prejudice was caused to the accused inasmuch as the witnesses have been cross examined in detail by the lawyer appointed by the court 34 47 that leaves us with the question of sentence we will have to consider as to whether the capital punishment in the present case is warranted or not 48 recently this court in the case of mohd mannan alias abdul mannan v state of bihar11 after considering earlier judgments of this court on the present issue in the cases of bachan singh v state of punjab12 and machhi singh and others v state of punjab13 observed thus 72 the proposition of law which emerges from the judgments referred to above is itself death sentence cannot be imposed except in the rarest of rare cases for which special reasons have to be recorded as mandated in section 354 3 of the criminal procedure code in deciding whether a case falls within the category of the rarest of rare the brutality and or the gruesome and or heinous nature of the crime is not the sole criterion it is not just the crime which the court is to take into consideration but also the criminal the state of his mind his socio economic background etc awarding death sentence is an exception and life imprisonment is the rule 49 this bench recently in the case of mofil khan and another v the state of jharkhand14 has observed thus 11 2019 16 scc 584 12 1980 2 scc 684 13 1983 3 scc 470 14 rp criminal no 641 2015 in criminal appeal no 1795 2009 dated 26 11 2021 35 8 one of the mitigating circumstances is the probability of the accused being reformed and rehabilitated the state is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused death sentence ought not to be imposed save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosed see bachan singh v state of punjab 1980 2 scc 684 to satisfy that the sentencing aim of reformation is unachievable rendering life imprisonment completely futile the court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme this analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal along with other circumstances see santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 in rajendra pralhadrao wasnik v state of maharashtra 2019 12 scc 460 this court dealt with the review of a judgment of this court confirming death sentence and observed as under 45 the law laid down by various decisions of this court clearly and unequivocally mandates that the probability not possibility or improbability or impossibility that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence this is one of the mandates of the special reasons requirement of section 354 3 crpc and ought not to be taken lightly since it involves snuffing out the life of a person to effectuate this mandate it is the obligation on the prosecution to prove 36 to the court through evidence that the probability is that the convict cannot be reformed or rehabilitated this can be achieved by bringing on record inter alia material about his conduct in jail his conduct outside jail if he has been on bail for some time medical evidence about his mental make up contact with his family and so on similarly the convict can produce evidence on these issues as well 50 in the present case it is to be noted that the trial court had convicted the appellant and imposed death penalty on the very same day the trial court as well as the high court has only taken into consideration the crime but they have not taken into consideration the criminal his state of mind his socio economic background etc at this juncture it will be relevant to refer to the following observations of this court in the case of rajendra pralhadrao wasnik v state of maharashtra15 47 consideration of the reformation rehabilitation and reintegration of the convict into society cannot be overemphasised until bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 the emphasis given by the courts was primarily on the nature of the crime its brutality and severity bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 placed the 15 2019 12 scc 460 37 sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict despite the view expressed by the constitution bench there have been several instances some of which have been pointed out in bariyar santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 2009 2 scc cri 1150 and in sangeet v state of haryana sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner as observed in sangeet sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 in the sentencing process both the crime and the criminal are equally important therefore we should not forget that the criminal however ruthless he might be is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime therefore it is for the prosecution and the courts to determine whether such a person notwithstanding his crime can be reformed and rehabilitated to obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken the process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society of course notwithstanding any information made available and its analysis by experts coupled with the evidence on record there could be instances where the social reintegration of the convict may not be possible if that should happen the option of a long duration of imprisonment is permissible 51 in view of the settled legal position it is our bounden duty to take into consideration the probability of the accused 38 being reformed and rehabilitated it is also our duty to take into consideration not only the crime but also the criminal his state of mind and his socio economic conditions 52 the appellant is a young person who was 23 years old at the time of commission of the offence he comes from a rural background the state has not placed any evidence to show that there is no possibility with respect to reformation and the rehabilitation of the accused the high court as well as the trial court also has not taken into consideration this aspect of the matter the appellant has placed on record the affidavits of leeladhar shrivas younger brother of the appellant as well as ghasanin shrivas elder sister of the appellant a perusal of the affidavits would reveal that the appellant comes from a small village called pusalda in raigarh district of chhattisgarh his father was earning his livelihood as a barber the appellant was studious and hard working he did really well at school and made consistent efforts to bring the family out of poverty the conduct of the appellant in the prison has been found to be satisfactory there are no criminal antecedents it is the first offence committed by the appellant no doubt a heinous one the 39 appellant is not a hardened criminal it therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative 53 a bench consisting of three judges of this court had an occasion to consider similar facts in the case of sunil v state of madhya pradesh16 in the said case too the appellant accused was around 25 years of age who had taken away a minor girl the accused had committed rape on the said minor and caused her death due to asphyxia caused by strangulation the trial court had sentenced the accused for the offences punishable under sections 363 367 376 2 f and 302 of the ipc and awarded him death penalty the same was upheld by the high court in appeal this court held thus 12 in the present case we do not find that the requirements spelt out in bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 and the pronouncements thereafter had engaged the attention of either of the courts in the present case one of the compelling mitigating circumstances that must 16 2017 4 scc 393 40 be acknowledged in favour of the appellant accused is the young age at which he had committed the crime the fact that the accused can be reformed and rehabilitated the probability that the accused would not commit similar criminal acts that the accused would not be a continuing threat to the society are the other circumstances which could not but have been ignored by the learned trial court and the high court 13 we have considered the matter in the light of the above on such consideration we are of the view that in the present case the ends of justice would be met if we commute the sentence of death into one of life imprisonment we order accordingly the punishments awarded for the offences under sections 363 367 and 376 2 f ipc by the learned trial court and affirmed by the high court are maintained 54 we are also inclined to adopt the same reasoning and follow the same course as adopted by this court in the case of sunil supra the appeals are therefore partly allowed the judgment and order of conviction for the offences punishable under sections 363 366 376 2 i 377 201 302 read with section 376a of the ipc and section 6 of the pocso act is maintained however the death penalty imposed on the appellant under section 302 ipc is commuted to life imprisonment the sentences awarded for 41 the rest of the offences by the trial court as affirmed by the high court are maintained 55 before we part with the judgment we must appreciate the valuable assistance rendered by shri anand grover learned senior counsel appearing on behalf of the appellant and shri nishanth patil learned counsel appearing on behalf of the respondent state j l nageswara rao j b r gavai j b v nagarathna new delhi december 14 2021 42 reportable in the supreme court of india criminal appellate jurisdiction criminal appeal nos 499 500 of 2018 lochan shrivas appellant s versus the state of chhattisgarh respondent s j u d g m e n t b r gavai j 1 the appellant has approached this court being aggrieved by the judgment and order passed by the high court of chhattisgarh bilaspur dated 17th november 2017 thereby dismissing the appeal preferred by the appellant challenging the judgment and order dated 17th june 2016 passed by the additional sessions judge fast track court raigarh hereinafter referred to as the trial judge vide which the trial judge convicted the appellant for the offences punishable under sections 363 366 376 2 i 377 201 302 read with section 376a of the indian penal code 1860 1 hereinafter referred to as the ipc and section 6 of the protection of children from sexual offences act 2012 hereinafter referred to as the pocso act vide the same judgment and order the appellant was sentenced to death for the offence punishable under section 302 of the ipc for the other offences for which the appellant was found guilty sentences of rigorous imprisonment of 3 years 5 years 7 years and life imprisonment have been awarded to the appellant the trial judge has also made a reference being cr ref no 1 of 2016 to the high court under section 366 of the code of criminal procedure 1973 hereinafter referred to as cr p c for confirmation of death penalty vide the impugned judgment and order the high court while dismissing the appeal of the appellant has confirmed the death penalty 2 the prosecution case in brief is thus complainant pw 1 gudiya parveen w o pw 2 mohd armaan resided at d 29 4th floor bajrangdheepa colony with her husband and her minor victim daughter aged 3 years at about 10 00 am on 24th february 2016 she had gone downstairs to wash clothes at that time she called her 2 husband for bathing the victim her husband told her that the victim had gone downstairs to play pw 1 then went upstairs and told her husband that the victim was not downstairs thereafter her husband pw 2 and she started looking for the victim but the victim was not found anywhere since the victim could not be found pw 1 went to jutemill police station and lodged a report of the victim going missing they continued the search and ultimately returned to their house at around 03 00 04 00 am in the morning pw 3 mohd sahid alias raju khan told her that appellant lochan shrivas a resident of d 15 in the same building had said that if they would allow him to conduct a worship he could find their child in an hour therefore they agreed to conduct the worship after the worship the appellant informed them that the child was tied and kept inside a sack in the bushes near a pole beside the road in amlibhauna on this pw 1 and other prosecution witnesses developed a suspicion and as such pw 3 informed the police the police interrogated the appellant who confessed his crime before them thereafter on a memorandum under section 27 of the indian evidence act 1872 hereinafter referred to as the 3 evidence act a sack from the bushes was recovered wherein the dead body of the deceased soaked in blood was found ex p 12 on the basis of the oral report ex p 1 of pw 1 a first information report hereinafter referred to as fir ex p 36 came to be registered for the offence punishable under section 363 of the ipc after completion of investigation a charge sheet came to be filed before the trial judge for the offences punishable under sections 363 376 377 302 201 of the ipc and section 6 of the pocso act 3 charges came to be framed for the offences punishable under sections 363 376 2 i 377 201 302 read with section 376a of the ipc and section 6 of the pocso act the accused pleaded to be not guilty and claimed to be tried at the conclusion of the trial the trial judge recorded the aforesaid order of conviction and sentence being aggrieved thereby an appeal was preferred by the appellant and also a reference was made by the trial judge under section 366 of the cr p c by the impugned judgment and order the high court dismissed the appeal filed by the appellant and confirmed the death sentence hence the present appeals 4 4 we have heard shri anand grover learned senior counsel appearing on behalf of the appellant and shri nishanth patil learned counsel appearing on behalf of the respondent state 5 shri anand grover learned senior counsel appearing on behalf of the appellant submitted that the present case is a case based on circumstantial evidence he submitted that the prosecution has utterly failed to establish the incriminating circumstances and in any case failed to establish the chain of events which leads to no other conclusion than the guilt of the accused he submitted that there are many missing links in the prosecution case and as such the judgment and order of conviction as recorded by the trial judge and confirmed by the high court is not sustainable in law the learned senior counsel submitted that the main incriminating circumstance on which the prosecution relies is the recovery of the dead body of the victim he submitted that the recovery is from an open place accessible to one and all he therefore submitted that the said recovery is of no assistance to the prosecution case he further submitted that the alleged recovery of black jeans 5 half pant ex p 15 of the deceased and the white gamchha ex p 16 is from a place accessible to one and all he submitted that in any case the forensic science laboratory hereinafter referred to as the fsl reports are inconclusive and therefore the prosecution has failed to establish the link between the recovered materials and the crime 6 shri grover submitted that the evidence of pw 9 chameli sarthi constable would reveal that she had gone to the spot from where the body of the victim was alleged to have been recovered at around 06 00 am it is thus clear that the police were already aware about the place from where the body was alleged to have been recovered on a memorandum under section 27 of the evidence act 7 he further submitted that the finger nails of the appellant were cut by a barber pw 8 kishore shrivas and not by any forensic expert he therefore submitted that the circumstance of finding human blood on the said nails is of no use to the prosecution case this is particularly so in view of the long delay in seizure of the nail samples and sending them to the fsl the learned senior counsel further submitted that it is improbable that the prosecution could 6 have called the photographer at such a short notice he submitted that the alleged recovery is at around 08 00 am which are not the business hours and as such the very evidence regarding photography and videography becomes doubtful 8 the learned senior counsel for the appellant further submitted that the entire record would reveal that the appellant was not given an opportunity of meaningfully defending the case he submitted that since the raigarh district bar association had taken a resolution that no lawyer from the bar would appear for the appellant it was difficult for him to engage a lawyer the lawyer appointed by the court from a list of panel lawyers also was not given sufficient opportunity to defend the case of the appellant he submitted that the evidence of pws 1 and 2 the mother and the father of the victim were recorded on the very same day on which the lawyer was appointed for the appellant he further submitted that the trial court recorded the judgment and order of conviction and the sentence on the very same day without giving an appropriate opportunity to the appellant the learned senior counsel therefore submitted 7 that the prosecution has failed to prove the case beyond reasonable doubt and the appeals deserve to be allowed 9 the learned senior counsel in the alternative would submit that in any case the death penalty would not be warranted in the facts of the present case he submitted that the trial court as well as the high court has taken into consideration only the aspect of crime and they have not dealt with the aspect regarding the criminal it is submitted that the trial court as well as the high court has not taken into consideration the socio economic background of the appellant so also the possibility of the appellant being reformed or rehabilitated it is therefore submitted that the imposition of death penalty in the facts of the present case is not at all warranted 10 shri nishanth patil learned counsel appearing on behalf of the respondent state on the contrary submitted that the prosecution has established the case beyond reasonable doubt it is submitted that the prosecution has proved all the incriminating circumstances beyond reasonable doubt he further submitted that the prosecution 8 has also established the link of proved circumstances which leads to no other conclusion than the guilt of the accused 11 shri patil further submitted that the appellant has committed a heinous act of rape on a minor girl and then brutally killed her and as such the case warrants for no other penalty than the death penalty 12 with the assistance of the learned counsel for the parties we have scrutinized the entire evidence on record in depth normally this court while exercising its jurisdiction under article 136 of the constitution of india would not go into detailed analysis of the evidence however since in the present case the trial court has imposed death penalty which is confirmed by the high court we have scrutinized the evidence minutely 13 the law with regard to conviction in cases based on circumstantial evidence has been very well crystalised in the celebrated case of hanumant son of govind nargundkar v state of madhya pradesh1 a three judge bench of this court speaking through mehr chand mahajan j observed thus 1 1952 scr 1091 9 it is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved in other words there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act much have been done by the accused 14 it is thus clear that for resting a conviction in the case of circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show 10 that within all human probabilities the act must have been done by the accused 15 subsequently this court in the case of sharad birdhichand sarda v state of maharashtra2 observed thus 153 a close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established 1 the circumstances from which the conclusion of guilt is to be drawn should be fully established it may be noted here that this court indicated that the circumstances concerned must or should and not may be established there is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this court in shivaji sahabrao bobade v state of maharashtra 1973 2 scc 793 1973 scc cri 1033 1973 crl lj 1783 where the observations were made scc para 19 p 807 scc cri p 1047 certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions 2 the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say they should not be explainable on any 2 1984 4 scc 116 11 other hypothesis except that the accused is guilty 3 the circumstances should be of a conclusive nature and tendency 4 they should exclude every possible hypothesis except the one to be proved and 5 there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused 154 these five golden principles if we may say so constitute the panchsheel of the proof of a case based on circumstantial evidence 16 as has been held by this court in a case of circumstantial evidence before the case can be said to be fully established against an accused it is necessary that the circumstances from which the conclusion of guilt is to be drawn should be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused they should not be explainable on any other hypothesis except that the accused is guilty the circumstances should be of a conclusive nature and tendency they should exclude every hypothesis except the one to be proved there must be a chain of evidence so 12 complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused 17 the aforesaid view has been consistently followed by this court in a catena of decisions 18 the circumstances which the trial court has culled out in its judgment while holding that the prosecution has proved its case beyond reasonable doubt are thus 1 the accused telling pw5 munni that he can tell the location of the missing victim in an hour if he does pooja 2 pw5 munni telling pw3 mo sahid alias raju khan what the accused had told her as above 3 pw3 mo sahid alias raju khan telling the victim s parents of the above conversation 4 the deceased s parents pw1 gudiya parveen and pw2 mo armaan asking the accused to perform the pooja 5 the accused saying that the victim s body was in a gunny sack near an electricity pole on the side of the road in amlibhauna 6 pw3 mo sahid alias raju khan telling the police of the aforesaid claims by the accused 7 police questioning the accused and the accused going along with the police to locate the victim s dead body in a gunny sack in amlibhauna 13 8 the accused leading the police to recover the pillow and the towel from his home 9 the accused leading the police to the rubbish dump where he had thrown the victim s pants 10 material used in a pooja being recovered from the home of the victim 11 according to ex p 46 the fact that blood was found under the accused s nails and that the victim s vaginal slide had traces of human sperm 19 the high court also by giving an elaborate reasoning has held that the prosecution has proved the chain of incriminating circumstances which leads to no other conclusion than the guilt of the appellant 20 we will now consider the evidence led on behalf of the prosecution to establish the incriminating circumstances against the appellant 21 pw 1 gudiya parveen mother of the victim has deposed that she lived in d 29 4th floor bajrangdheepa colony the appellant lived downstairs in d 15 in the same building on 24th february 2016 at about 10 00 am she had gone downstairs to wash clothes she had called her husband for bathing the victim however her husband told her that the victim had gone downstairs to play thereafter they 14 searched for the victim but she was not found and therefore they went to jutemill police station and lodged the report of the victim going missing on the basis of the oral report ex p 1 an fir ex p 36 came to be registered the oral report ex p 1 is duly proved in the evidence of pw 1 whereas the fir ex p 36 has been proved in the evidence of pw 16 dinesh bahidar assistant sub inspector 22 it could thus be seen that the first circumstance that the prosecution has proved is that the victim went missing at around 10 00 am and thereafter they started searching for her when the victim was not found anywhere an oral report ex p 1 came to be lodged at around 22 00 hours on 24th february 2016 on the basis of which an fir ex p 36 came to be registered 23 pw 1 in her testimony has further stated that she and her husband pw 2 mohd armaan tried to search for the child since she could not be found they returned at around 03 00 04 00 am when they returned home raju khan pw 3 informed them that appellant lochan shrivas a resident of d 15 has stated that if they would allow him to conduct a worship he could find the child in an hour then 15 pw 1 agreed for conducting the worship she arranged for the things required for worship vermilion lemons earthen lamps incense sticks and coal after these things had been brought the appellant performed the worship in the room of pw 1 he had asked them to cover all the pictures of allah by a cloth after performing the worship the appellant told them that the child was inside a sack in the bushes near a pole beside the road in amlibhauna 24 similar is the evidence of pw 2 mohd armaan the husband of pw 1 and father of the victim pw 3 raju khan who is a neighbour had stated in his evidence that when they could not find the victim they returned at around 03 00 03 30 am he stated that when they returned munni alias sarbari pw 5 told them that appellant lochan shrivas who lived in d 15 was telling her that the child could be traced by worship accordingly the worship was performed and after that appellant lochan said that the victim was inside a sack in the bushes near a pole beside amlibhauna road 25 pw 5 munni alias sarbari who is also a resident of bajrangdheepa colony stated that she had also joined for 16 searching the victim however since the victim was not found they returned at about 03 00 03 30 am on 25th february 2016 the appellant met her and said if you conduct worship your child will be found she told the same to raju khan pw 3 then the appellant conducted worship and said that the deceased was inside a sack in the bushes near a pole beside the road in amlibhauna 26 it could thus be seen that the prosecution has proved beyond reasonable doubt that the appellant on his own told pw 5 munni alias sarbari that if a worship was performed the whereabouts of the victim could be found pw 5 munni alias sarbari informed this fact to pw 3 raju khan who in turn informed the same to pws 1 and 2 accordingly a worship came to be performed after the worship was performed the appellant told them that the victim could be found in a sack in the bushes near a pole beside the road in amlibhauna 27 pw 19 amit patley sub inspector investigating officer hereinafter referred to as the io has also seized the materials which were used for performing the worship ex p 18 the said panchnama is witnessed by raju khan pw 17 3 the said seizure panchnama therefore corroborates the ocular version of pws 1 2 3 and 5 it is thus clear that when pws 1 2 3 and 5 returned to their place of residence the appellant informed pw 5 that if they perform a worship the deceased could be found accordingly a worship was performed and after performing the said worship the appellant said that the deceased could be found in a sack in the bushes near a pole beside the road in amlibhauna this circumstance could be an important circumstance for considering the conduct of the appellant under section 8 of the evidence act reliance in this respect could be placed on the judgments of this court in the cases of prakash chand v state delhi administration 3 himachal pradesh administration v shri om prakash4 and a n venkatesh and another v state of karnataka5 28 the next and the most important circumstance on which the prosecution relies is the recovery of dead body of the victim on a memorandum of the appellant under section 27 of the evidence act the evidence of pws 1 2 3 and 5 3 1979 3 scc 90 4 1972 1 scc 249 5 2005 7 scc 714 18 would reveal that immediately after the appellant performing worship and telling them that the victim was inside a sack in the bushes near a pole beside the road in amlibhauna a suspicion arose and raju khan pw 3 immediately informed the police and the police arrived the evidence of all the four witnesses is consistent in that regard amit patley io pw 19 also corroborated this fact with regard to the police receiving the said information in his evidence pw 19 stated that he registered the said information in rojnamcha no 2 dated 25th february 2016 at 06 10 am the said rojnamcha entry has been exhibited at ex p 38 and its attested copy is at ex p 38 c 29 pw 19 in his evidence stated that after receiving the information he immediately went to the spot and took the appellant into his custody and interrogated him he stated that the appellant on being interrogated stated thus the previous day on 24 02 2016 at about 10 00 he had been alone in his room the deceased who lived in d 29 on the floor above his house was coming downstairs whom she persuaded and took into his room and closed his room from inside and got the pants worn by the deceased removed and forcibly made physical relation with her meanwhile the deceased started crying loudly so he pressed the mouth and nose of the 19 deceased with a pillow by making physical relation excessive bleeding started seeing which he got nervous and thinking that the secret should not be revealed he murdered the deceased by strangulating her and wipe the blood and the ejaculated sperm smeared on his penis with a towel kept in the room he filled the dead body of the deceased in a plastic sack of lentil by twisting her hands and legs he tied the bag with a plastic rope he wore his clothes he filled the pants worn by the deceased in a polythene and threw it from the balcony to the place where garbage is disposed and entering the room placed the dead body of the deceased that he had filled in a plastic sack in a yellow bag he locked the room carried the bag in hands and went on foot to hide the dead body in a bush near electric pole at amlibhouna road and stated of keeping the bag in his home on returning and of keeping the pillow with which he had pressed the nose and mouth of the deceased and the towel with which he had wiped the blood and semen on his penis in his room and stated of getting the dead body of the deceased her pants pillow and towel recovered 30 the memorandum statement under section 27 of the evidence act was duly executed and the same was marked as ex p 11 the prosecution has examined pw 3 raju khan who is a witness to the said memorandum statement 31 pw 19 further stated that thereafter in the presence of the witnesses he recovered a blue plastic bag bearing a map of india and the text no 1 dal best quality dal which had been tied with a plastic rope he got the bag cut open by 20 raju khan pw 3 in the presence of the father of the deceased pw 2 and other witnesses in the said sack the dead body of the victim soaked in blood and in a naked condition was found the body was identified by pw 2 who is the father of the deceased the recovery panchnama is duly executed under ex p 12 the prosecution has relied on the evidence of pw 3 who was a panch witness to the said panchnama 32 the said recovery on the memorandum of the appellant under section 27 of the evidence act has been attacked by the defence on the ground that the same is from an open place accessible to one and all in this respect it is apposite to rely on the following observations of this court in the case of state of himachal pradesh v jeet singh6 26 there is nothing in section 27 of the evidence act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others it is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under section 27 of the evidence act any object can be concealed in places which are open or accessible to others for example if the article is buried in 6 1999 4 scc 370 21 the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office the article would remain out of the visibility of others in normal circumstances until such article is disinterred its hidden state would remain unhampered the person who hid it alone knows where it is until he discloses that fact to any other person hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others if it is not then it is immaterial that the concealed place is accessible to others it could thus be seen that this court has held that what is relevant is not whether the place was accessible to others or not but whether it was ordinarily visible to others if the place at which the article hidden is such where only the person hiding it knows until he discloses that fact to any other person then it will be immaterial whether the concealed place is accessible to others 33 it will also be relevant to refer to the following observations of this court in the case of john pandian v state represented by inspector of police tamil nadu7 57 it was then urged by the learned counsel that this was an open place and anybody could have planted veechu aruval that appears to be a very remote possibility nobody can simply produce a veechu aruval planted under the 7 2010 14 scc 129 22 thorny bush the discovery appears to be credible it has been accepted by both the courts below and we find no reason to discard it this is apart from the fact that this weapon was sent to the forensic science laboratory fsl and it has been found stained with human blood though the blood group could not be ascertained as the results were inconclusive the accused had to give some explanation as to how the human blood came on this weapon he gave none this discovery would very positively further the prosecution case 34 a perusal of the material placed on record would reveal that the dead body of the deceased was recovered on the basis of the information supplied by the appellant that he had concealed the body in a sack in the bushes near a pole beside the road in amlibhauna the evidence of pw 7 krishna kumar jaiswal photographer would reveal that after he received the notice he went to the spot and clicked the photographs ex p 23 he has further stated that he has also made the videography of the entire procedure 35 it will also be relevant to refer to the following observations made by the high court in para 35 of the impugned judgment 35 we have gone through the video movie prepared and after watching the video we are of 23 the view that the recovery of dead body was made from a place which cannot be said to be accessible to an ordinary person without prior knowledge as the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road in the statement under section 313 crpc the accused appellant failed to explain how he came to know that the deceased had been murdered and thrown in the shrubs after wrapping her in a gunny bag it could thus be seen that the high court had itself viewed the video and on seeing the same it was of the view that the recovery of the dead body was made from a place which cannot be said to be accessible to an ordinary person without prior knowledge since the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road 36 insofar as the reliance placed by the appellant on the judgment of this court in the case of krishan mohar singh dugal v state of goa8 is concerned in the said case the accused was convicted for the offence punishable under section 20 b ii of the narcotic drugs and psychotropic substances act 1985 solely on the basis of recovery at the 8 1999 8 scc 552 24 instance of the accused on the basis of memorandum statement under section 27 of the evidence act in the said case the recovery was from a place under the coconut tree which was accessible to one and all it was not a case of concealment in a place which was only within the knowledge of the person concealing it in any event in the said case the conviction was solely on the basis of the said recovery and as such was found to be untenable 37 insofar as the reliance placed by the appellant on the judgment of this court in the case of nilesh dinkar paradkar v state of maharashtra9 is concerned in the said case the conviction was solely on the basis of identification by voice and as such was not found to be tenable as such these cases would not be of any assistance to the case of the appellant 38 it has been sought to be urged on behalf of the appellant that from the evidence of pw 9 chameli sarthi it is clear that the police already knew about the place where the dead body was concealed pw 9 had taken the dead body of the deceased to district hospital raigarh it will be 9 2011 4 scc 143 25 apposite to refer to the relevant portion of the deposition of pw 9 we went to the place of incident amlibhowna at 6 a m from the outpost from there we directly went to the hospital with all today i cannot state at what time we left the place of incident amlibhowna the witness now says perhaps we left at 8 9 o clock along with prakash tiwari sub inspector amit patle was also present with me and policemen from other police station were also present two person were going ahead taking the dead body in an auto rickshaw we were following by our bikes pw 9 stated that she went to the place of incident amlibhauna at 06 00 am from the outpost it is to be noted that according to the evidence of pws 1 2 3 and 19 pw 3 informed pw 19 about the incident at around 06 00 am the said information was registered in the rojnamcha at around 06 10 am what is stated by this witness is that she went to amlibhauna which is a locality however that by itself would not be sufficient to come to a conclusion that the police already knew about the place from where the dead body was recovered she stated that she had left for the hospital at around 08 00 09 00 o clock the evidence of a witness cannot be read in piecemeal the evidence has to be 26 read as a whole if the evidence of this witness is read as a whole the attack on her evidence is not justified in any case the recovery of the body on the information given by the appellant is duly proved by the memorandum of the appellant under section 27 of the evidence act ex p 11 and the recovery panchnama ex p 12 that apart the oral testimony of pws 1 2 3 5 and 19 corroborates the same 39 we are therefore of the considered view that the prosecution has proved beyond reasonable doubt that the recovery of the dead body of the deceased on the memorandum of the appellant under section 27 of the evidence act was from a place distinctly within the knowledge of the appellant 40 another circumstance against the appellant is the recovery of the black jeans half pant of the deceased ex p 15 from the dumping area and the gamchha and pillow ex p 16 from the house of the appellant pw 3 is a panch witness to the recovery of black jeans half pant ex p 15 he is also a witness to the spot panchnama ex p 17 where the worship was conducted it is further noted that on the 27 gamchha seized from the house of the appellant blood stains were found much attack has been made by the defence on the ground that the fsl report does not connect the appellant with the said blood found on gamchha to consider this submission we may gainfully refer to the following observations of this court in the case of r shaji v state of kerala10 30 it has been argued by the learned counsel for the appellant that as the blood group of the bloodstains found on the chopper could not be ascertained the recovery of the said chopper cannot be relied upon 31 a failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all sometimes it is possible either because the stain is insufficient in itself or due to haematological changes and plasmatic coagulation that a serologist may fail to detect the origin of the blood in question however in such a case unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity no benefit can be claimed by the accused in this regard once the recovery is made in pursuance of a disclosure statement made by the accused the matching or non matching of blood group s loses significance vide prabhu babaji navle v state of bombay air 1956 sc 51 1956 cri lj 147 raghav prapanna tripathi v state of u p air 1963 sc 74 1963 10 2013 14 scc 266 28 1 cri lj 70 state of rajasthan v teja ram 1999 3 scc 507 1999 scc cri 436 gura singh v state of rajasthan 2001 2 scc 205 2001 scc cri 323 air 2001 sc 330 john pandian v state 2010 14 scc 129 2011 3 scc cri 550 and sunil clifford daniel v state of punjab 2012 11 scc 205 2013 1 scc cri 438 32 in view of the above the court finds that it is not possible to accept the submission that in the absence of a report regarding the origin of the blood the accused cannot be convicted for it is only because of the lapse of time that the blood could not be classified successfully therefore no advantage can be conferred upon the accused to enable him to claim any benefit and the report of disintegration of blood etc cannot be termed as a missing link on the basis of which the chain of circumstances may be presumed to be broken 41 the next circumstance is the finding of the blood stains on the nail clipping of the appellant pw 8 kishore shrivas is a barber he has stated that on being called by the police he cut the nails of both the hands of the appellant the said nails were cut under the panchnama ex p 19 which is signed by the said barber as well as pw 3 the said circumstance is attacked on the ground that the io had not called the forensic team for seizure of the said nails however even if this circumstance is excluded we find that the other circumstances which have been discussed in detail 29 by us in the foregoing paragraphs conclusively bring home the guilt of the appellant 42 the panchnamas are sought to be attacked on the ground that pw 3 is the only panch witness to all these panchnamas we are of the view that this contention deserves no merit in the light of the following observations of this court in the case of himachal pradesh administration supra 10 further having held this it nonetheless said that there was no injunction against the same set of witnesses being present at the successive enquiries if nothing could be urged against them in our view the evidence relating to recoveries is not similar to that contemplated under section 103 of the criminal procedure code where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate in an investigation under section 157 the recoveries could be proved even by the solitary evidence of the investigating officer if his evidence could otherwise be believed we cannot as a matter of law or practice lay down that where recoveries have to be effected from different places on the information furnished by the accused different sets of persons should be called in to witness them in this case pw 2 and pw 8 who worked with the deceased were the proper persons to witness the recoveries as they could identify some of the things that were missing and also they could both speak to the information and the recovery made in consequence thereof as a 30 continuous process at any rate pw 2 who is alleged to be the most interested was not present at the time of the recovery of the dagger 43 we are therefore of the considered view that the prosecution has established the following circumstances beyond reasonable doubt i the victim was reported missing and an fir was lodged in this regard ii the appellant had claimed that he could disclose the whereabouts of the victim by performing a worship iii the said worship came to be conducted by the appellant in the early hours of 25th february 2016 in the presence of pws 1 2 3 and 5 and the appellant disclosed to them that the dead body of the victim was inside a sack in the bushes near a pole beside the road in amlibhauna iv a suspicion arose in the minds of pws 1 2 3 and 5 and they immediately informed the police the said information is recorded in rojnamcha no 2 under ex p 38 v police immediately reached the spot and interrogated the appellant on interrogation a memorandum under section 27 of the evidence act came to be recorded 31 vi on the basis of memorandum of the appellant under section 27 of the evidence act the dead body of the victim ex p 12 was recovered from a sack which was concealed by the appellant under the bushes from a place distinctly within his knowledge and vii on a memorandum of the appellant under section 27 of the evidence act a black jeans half pant of the victim ex p 15 and a gamchha of the appellant ex p 16 were recovered from the dumping area behind d block in nagar nigam colony and the house of the appellant respectively 44 we are of the considered view that the aforesaid proven circumstances establish a chain of circumstances which leads to no other conclusion than the guilt of the appellant apart from that in the statement recorded under section 313 cr p c though all these incriminating circumstances have been put to the appellant he has not offered any explanation except saying that it is wrong and false in this respect we may refer to the following observations of this court in the case of sharad birdhichand sarda supra 32 151 it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence this is trite law and no decision has taken a contrary view what some cases have held is only this where various links in a chain are in themselves complete then a false plea or a false defence may be called into aid only to lend assurance to the court in other words before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity it is not the law that where there is any infirmity or lacuna in the prosecution case the same could be cured or supplied by a false defence or a plea which is not accepted by a court 45 it is trite law that though the false explanation cannot be taken to complete a missing link in the chain of circumstances it can surely be taken to fortify the conclusion of conviction recorded on the basis of the proven incriminating circumstances we find that the non explanation of the circumstances would fortify the finding which is based on the chain of incriminating circumstances that leads to no other conclusion than the guilt of the appellant 46 an important aspect arises for consideration in the present appeals so also in the various other appeals where the accused is not given an appropriate opportunity of 33 defending the case in the present case we find that the charges were framed on 6th may 2016 on 6th june 2016 the accused appeared before the court and submitted that he was not competent to engage a lawyer at his own cost as such the trial judge appointed shri kamlesh saraf from the panel as the lawyer to represent the accused immediately on the next day the evidence of pws 3 to 7 were recorded the trial judge passed the judgment and order of conviction on 17th june 2016 and also awarded death penalty on the same day we find that though a speedy trial is desirable however sufficient time ought to have been given to the counsel for the accused to prepare for the case after he was appointed even insofar as the award of sentence is concerned some period ought to have been given between the date of conviction and the award of sentence specifically when a death penalty was awarded however from the evidence which we have scrutinized in depth we do not find that any prejudice was caused to the accused inasmuch as the witnesses have been cross examined in detail by the lawyer appointed by the court 34 47 that leaves us with the question of sentence we will have to consider as to whether the capital punishment in the present case is warranted or not 48 recently this court in the case of mohd mannan alias abdul mannan v state of bihar11 after considering earlier judgments of this court on the present issue in the cases of bachan singh v state of punjab12 and machhi singh and others v state of punjab13 observed thus 72 the proposition of law which emerges from the judgments referred to above is itself death sentence cannot be imposed except in the rarest of rare cases for which special reasons have to be recorded as mandated in section 354 3 of the criminal procedure code in deciding whether a case falls within the category of the rarest of rare the brutality and or the gruesome and or heinous nature of the crime is not the sole criterion it is not just the crime which the court is to take into consideration but also the criminal the state of his mind his socio economic background etc awarding death sentence is an exception and life imprisonment is the rule 49 this bench recently in the case of mofil khan and another v the state of jharkhand14 has observed thus 11 2019 16 scc 584 12 1980 2 scc 684 13 1983 3 scc 470 14 rp criminal no 641 2015 in criminal appeal no 1795 2009 dated 26 11 2021 35 8 one of the mitigating circumstances is the probability of the accused being reformed and rehabilitated the state is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of the accused death sentence ought not to be imposed save in the rarest of the rare cases when the alternative option of a lesser punishment is unquestionably foreclosed see bachan singh v state of punjab 1980 2 scc 684 to satisfy that the sentencing aim of reformation is unachievable rendering life imprisonment completely futile the court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme this analysis can only be done with rigour when the court focuses on the circumstances relating to the criminal along with other circumstances see santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 in rajendra pralhadrao wasnik v state of maharashtra 2019 12 scc 460 this court dealt with the review of a judgment of this court confirming death sentence and observed as under 45 the law laid down by various decisions of this court clearly and unequivocally mandates that the probability not possibility or improbability or impossibility that a convict can be reformed and rehabilitated in society must be seriously and earnestly considered by the courts before awarding the death sentence this is one of the mandates of the special reasons requirement of section 354 3 crpc and ought not to be taken lightly since it involves snuffing out the life of a person to effectuate this mandate it is the obligation on the prosecution to prove 36 to the court through evidence that the probability is that the convict cannot be reformed or rehabilitated this can be achieved by bringing on record inter alia material about his conduct in jail his conduct outside jail if he has been on bail for some time medical evidence about his mental make up contact with his family and so on similarly the convict can produce evidence on these issues as well 50 in the present case it is to be noted that the trial court had convicted the appellant and imposed death penalty on the very same day the trial court as well as the high court has only taken into consideration the crime but they have not taken into consideration the criminal his state of mind his socio economic background etc at this juncture it will be relevant to refer to the following observations of this court in the case of rajendra pralhadrao wasnik v state of maharashtra15 47 consideration of the reformation rehabilitation and reintegration of the convict into society cannot be overemphasised until bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 the emphasis given by the courts was primarily on the nature of the crime its brutality and severity bachan singh bachan singh v state of punjab 1980 2 scc 684 1980 scc cri 580 placed the 15 2019 12 scc 460 37 sentencing process into perspective and introduced the necessity of considering the reformation or rehabilitation of the convict despite the view expressed by the constitution bench there have been several instances some of which have been pointed out in bariyar santosh kumar satishbhushan bariyar v state of maharashtra 2009 6 scc 498 2009 2 scc cri 1150 and in sangeet v state of haryana sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 where there is a tendency to give primacy to the crime and consider the criminal in a somewhat secondary manner as observed in sangeet sangeet v state of haryana 2013 2 scc 452 2013 2 scc cri 611 in the sentencing process both the crime and the criminal are equally important therefore we should not forget that the criminal however ruthless he might be is nevertheless a human being and is entitled to a life of dignity notwithstanding his crime therefore it is for the prosecution and the courts to determine whether such a person notwithstanding his crime can be reformed and rehabilitated to obtain and analyse this information is certainly not an easy task but must nevertheless be undertaken the process of rehabilitation is also not a simple one since it involves social reintegration of the convict into society of course notwithstanding any information made available and its analysis by experts coupled with the evidence on record there could be instances where the social reintegration of the convict may not be possible if that should happen the option of a long duration of imprisonment is permissible 51 in view of the settled legal position it is our bounden duty to take into consideration the probability of the accused 38 being reformed and rehabilitated it is also our duty to take into consideration not only the crime but also the criminal his state of mind and his socio economic conditions 52 the appellant is a young person who was 23 years old at the time of commission of the offence he comes from a rural background the state has not placed any evidence to show that there is no possibility with respect to reformation and the rehabilitation of the accused the high court as well as the trial court also has not taken into consideration this aspect of the matter the appellant has placed on record the affidavits of leeladhar shrivas younger brother of the appellant as well as ghasanin shrivas elder sister of the appellant a perusal of the affidavits would reveal that the appellant comes from a small village called pusalda in raigarh district of chhattisgarh his father was earning his livelihood as a barber the appellant was studious and hard working he did really well at school and made consistent efforts to bring the family out of poverty the conduct of the appellant in the prison has been found to be satisfactory there are no criminal antecedents it is the first offence committed by the appellant no doubt a heinous one the 39 appellant is not a hardened criminal it therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative 53 a bench consisting of three judges of this court had an occasion to consider similar facts in the case of sunil v state of madhya pradesh16 in the said case too the appellant accused was around 25 years of age who had taken away a minor girl the accused had committed rape on the said minor and caused her death due to asphyxia caused by strangulation the trial court had sentenced the accused for the offences punishable under sections 363 367 376 2 f and 302 of the ipc and awarded him death pena truncated 2286 2021_crl a no 001410 001410 2021 court state of 2016 10 17 1410 of 2021 1411 of 2021 1339 of 2021 1412 of 2021 1159 of 2021 1413 of 2021 5071 of 2021 1414 of 2021 7472 of 2021 connally v general ltd v custodian 1990 sc 1747 devi v patna 1966 sc 1678 kerala v mathai india v deoki raghunath v state 1992 sc 81 salmon v duncombe enterprises v hi regina v h people v avery bifulco v united people v cruz india v peerless singh v delhi ors v state eera v state bajaj v k p s ors v state shrivastava v union dhar v state singha v state reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 1410 of 2021 special leave petition crl no 925 of 2021 attorney general for india appellant s versus satish and another respondent s with criminal appeal no 1411 of 2021 special leave petition crl no 1339 of 2021 national commission for women appellant s versus the state of maharashtra and another respondent s with criminal appeal no 1412 of 2021 special leave petition crl no 1159 of 2021 the state of maharashtra appellant s versus satish respondent s with criminal appeal no 1413 of 2021 special leave petition crl no 5071 of 2021 1 the state of maharashtra appellant s versus libnus respondent s with criminal appeal no 1414 of 2021 special leave petition crl no 7472 of 2021 satish appellant s versus the state of maharashtra respondent s j u d g m e n t bela m trivedi j 1 leave granted in all appeals 2 the four appeals filed by the appellants attorney general for india by the national commission for women by the state of maharashtra and by the appellant accused satish respectively arising out of the judgment and order dated 19 01 2021 passed in criminal appeal no 161 of 2020 by the high court of judicature at bombay nagpur bench and the appeal filed by the appellant state of maharashtra arising out of the judgment and order dated 15 01 2021 passed in the criminal appeal no 445 of 2020 by the 2 same nagpur bench encompass similar contextual legal issues and therefore permit us this analogous adjudication i factual matrix in case of the accused satish 3 the extra joint additional sessions judge nagpur hereinafter referred to as the special court vide the judgment and order dated 5th february 2020 passed in the special child protection case no 28 2017 convicted and sentenced the accused satish for the offences under sections 342 354 and 363 of the indian penal code for short ipc and section 8 of the protection of children from sexual offences act 2012 for short pocso act being aggrieved by the same the accused satish had preferred an appeal being criminal appeal no 161 of 2020 in the high court of judicature at bombay nagpur bench by the judgment and order dated 19th january 2021 the high court disposed of the said appeal by acquitting the accused for the offence under section 8 of the pocso act and convicting him for the offence under sections 342 and 354 of the ipc the accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of rs 500 in default thereof to suffer r i for one month for the offence under section 354 and to undergo imprisonment for a period of six months and to pay fine of rs 500 in default thereof to suffer r i for one month for the offence under section 342 of ipc 3 4 the case of the prosecution before the special court as emerging from the record was that the informant happened to be the mother of the victim aged about 12 years the accused satish was residing in the same area where she was residing i e deepak nagar nagpur on 14 12 2016 at about 11 30 a m the victim had gone out to obtain guava since she did not return back for a long time the informant mother went in search of the victim at that time one lady sau divya uikey who was staying nearby told her that the neighbouring person the accused had taken her daughter along with him to his house the informant therefore went to the house of the accused the accused at that time came down from the first floor of his house the informant having made inquiry about her daughter the accused told her that she was not there in his house the informant however barged into the house of the accused to search her daughter as she heard the shouts coming from a room situated on the first floor she went to the first floor and found that the door of the room was bolted from outside she opened the door and found her daughter who was crying in the room on making inquiry as to what had happened her daughter told her that the accused had asked her to come with him and told her that he would give her a guava he took her to his house he then pressed her breast and tried to remove her salwar at that time the victim tried to shout but the accused pressed her mouth the accused thereafter left the room and bolted the door from outside the informant on having learnt such facts went to the 4 police station along with her daughter to lodge the complaint the said complaint was registered as crime no 405 2016 at police station gittikhadan nagpur it was further case of the prosecution that when the police rushed to the spot they saw that the accused was trying to commit suicide by hanging himself he therefore was sent to the hospital for treatment the spot panchanama was drawn and the statement of the victim was got recorded under section 164 of code of criminal procedure before the magistrate after the completion of the investigation the charge sheet was filed in the special court nagpur against the accused the special court after appreciating the evidence on record passed the judgment and order of conviction and sentence as stated hereinabove 5 the high court in the appeal filed by the accused satish acquitted the accused for the offence under section 8 of the pocso act and convicted him for the minor offence under sections 342 and 354 of ipc by making following observations 18 evidently it is not the case of the prosecution that the appellant removed her top and pressed her breast the punishment provided for offence of sexual assault is imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to fine considering the stringent nature of punishment provided for the offence in the opinion of this court stricter proof and serious allegations are required the act of pressing of breast of the child aged 12 years in the absence of any specific details as to whether 5 the top was removed or whether he inserted his hand inside top and pressed her breast would not fall in the definition of sexual assault it would certainly fall within the definition of the offence under section 354 of the indian penal code for ready reference section 354 of the indian penal code is reproduced below 354 assault or criminal force to woman with intent to outrage her modesty whoever assaults or uses criminal force to any woman with the intention to outrage her modesty shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine 19 so the act of pressing breast can be a criminal force to a woman girl with the intention to outrage her modesty the minimum punishment provided for this offence is one year which may extend to five years and shall also be liable to fine 20 to 25 26 it is not possible to accept this submission for the aforesaid reasons admittedly it is not the case of the prosecution that the appellant removed her top and pressed her breast as such there is no direct physical contact i e skin to skin with sexual intent without penetration 6 the above observations findings made by the high court have caused the attorney general for india the national commission for women and the state of maharashtra to file the appeals before this court the accused has also filed the appeal challenging his conviction for the offences under section 354 and 342 of the ipc 6 ii factual matrix in the case of the accused libnus 7 the additional sessions judge gadchiroli hereinafter referred to as the special court vide the judgment and order dated 5th october 2020 passed in the special pocso case no 07 2019 convicted and sentenced the accused libnus s o fransis kujur for the offences punishable under section 448 and 354 a 1 i of ipc and sections 8 and 10 read with section 9 m and 12 of the pocso act being aggrieved by the same the accused libnus had preferred an appeal being criminal appeal no 445 of 2020 in the high court of judicature at bombay nagpur bench vide the judgment and order dated 15th january 2021 the high court maintained the conviction of the accused for the offences under sections 448 and 354 a 1 i of the ipc read with section 12 of the pocso act and set aside the conviction of the accused for the offences under sections 8 and 10 of the pocso act the high court considering the nature of the alleged acts and the punishment provided for the alleged offences modified the sentence imposed by the special court to the extent he had already undergone and directed to set him free 8 the case of the prosecution before the special court as emerging from the record was that the informant happened to be the mother of the victim aged about five years the informant used 7 to do domestic work at some houses in the town for which she had to leave home at about 8 00 o clock in the morning and return at about 4 00 o clock in the afternoon on 11 02 2018 at about 8 00 o clock she had left for her work leaving her two daughters at home on that day her husband had also gone out to village chavela when she returned home at about 4 00 o clock in the afternoon she saw one person catching hold of a hand of her elder daughter i e victim and also saw her daughter raising her pant upwards she therefore shouted and asked who he was and what was he doing the said person released the hand of her daughter and turned back thereupon she found that the said person was libnus fransis who was residing nearby her house he told her that he had come to see her husband as he had some work when he started leaving the informant saw that the zip of his pant was open she therefore started shouting and abusing him on hearing the shouts her neighbours namely chhaya dnyanbaji pagade sayabai kailas barsagade and madhuri santosh kohchade came rushing to her house and in the meantime the said libnus f kujur ran away when she inquired her daughter as to what had happened her daughter told her that the said kujur came home asking about her father when she told him that her father had gone to a village and her mother had gone out for the work the said kujur caught her hands and moved her frock upward with one hand and lowered her pant with the other hand he thereafter unzipped his pant and showed his penis to her and then asked her 8 to lay down on wooden cot her daughter thereafter started crying all the ladies gathered there tried to search the accused but he was not found thereafter the informant alongwith her minor daughter and her neighbours chhaya dnyanbaji pagade and others went to the gadchiroli police station to lodge the report against libnus the said report of the informant came to be registered as the crime bearing no 63 2018 at the said police station for the offences punishable under sections 354 a 1 i and 448 of the ipc and sections 8 10 and 12 read with section 9 m and section 11 i of the pocso act after the completion of the investigation the charge sheet was filed before the special court nagpur the special court after appreciating the evidence on record passed the judgment and order of conviction and sentence as stated hereinabove 9 the high court in the appeal filed by the accused libnus while setting aside the conviction for the offences under sections 8 and 10 of the pocso act and maintaining the conviction for the offences under sections 448 and 354 a 1 i of ipc read with section 12 of the pocso act observed as under 9 in the case in hand undisputedly the age of the prosecutrix is five years if the offence of sexual assault is proved against the appellant accused the prosecutrix being of age below twelve years the conviction has to be recorded for the offence of aggravated sexual assault 10 the punishment for aggravated sexual assault is imprisonment of either 9 description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine 11 the appellant accused is prosecuted for the charge of aggravated sexual assault as per the definition of sexual assault a physical contact with sexual intent without penetration is essential ingredient for the offence the definition starts with the words whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any other act with sexual intent the words any other act encompasses within itself the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ejusdem generis the act should be of the same nature or closure to that the acts of holding the hands of the prosecutrix or opened zip of the pant as has been allegedly witnessed by pw 1 in the opinion of this court does not fit in the definition of sexual assault 12 the minimum sentence of this offence is five years imprisonment considering the nature of the offence and the sentence prescribed the aforesaid acts are not sufficient for fixing the criminal liability on the appellant accused for the alleged offence of aggravated sexual assault at the most the minor offence punishable under section 354 a 1 i of the ipc r w section 12 of the pocso act is proved against the appellant 13 in this view of the matter the prosecution could establish that appellant accused entered into the house of the prosecutrix with the intention of outraged her modesty or sexual harassment as defined u s 11 of the pocso act therefore the conviction of the appellant accused for the offence 10 punishable under sections 448 and 354 a 1 i of the ipc r w section 12 of the pocso act is maintained the punishment provided for the offence u s 345 a 1 i of the ipc and section 12 of the pocso act is sentence for a term which may extend to 3 years or and fine or with both the punishment for the offence of house trespass is imprisonment for a term upto one year and fine upto rs 1000 or with both it is informed that till date the appellant accused has undergone total imprisonment of about 5 months 10 being aggrieved by the said judgment and order passed by the high court the state of maharashtra has filed the present appeal submissions 11 we have heard the learned attorney general for india mr k k venugopal the learned senior advocate ms geeta luthra appearing for the national commission for women the learned advocate mr rahul chitnis appearing on behalf of the state of maharashtra the learned amicus curiae mr siddharth dave to assist the court and the learned senior advocate mr siddharth luthra appearing on behalf of the supreme court legal services committee for the accused satish and the accused libnus 12 the learned attorney general for india mr k k venugopal expressing grave concern about the manner in which the provisions contained in the pocso act were interpreted by the high court vehemently submitted that such interpretation would lead to 11 devastating effect in the society at large according to him the high court could not have acquitted the accused satish mis interpreting the provisions contained in section 7 on the ground that there was no direct physical contact i e skin to skin contact made by the accused with the victim he submitted that all the alleged acts of the accused i e taking the victim to his house trying to remove her salwar pressing her breast and pressing her mouth when she started shouting were the acts amounting to sexual assault within the meaning of section 7 punishable with section 8 of the pocso act 13 supplementing the said submissions made by the learned attorney general the learned senior counsel ms geeta luthra relied upon the objects and reasons for enacting the pocso act to submit that since the sexual offences against women were not adequately addressed by the existing laws the pocso act was specifically enacted to protect the children from the offences of sexual assault sexual harassment and pornography ms luthra also relied upon the views of the parliamentary committee appointed for the purpose of examining the bill with regard to the protection of children from sexual harassment to submit that the sexual offences as defined in clauses 3 and 7 of the bill intended to cover all the likely situations required to be covered thereunder ms luthra also relied upon a number of judgments of various courts of the united kingdom and of the united states of america as also of 12 this court to emphasis the legislative intent behind enacting the pocso act taking the court to the dictionary meaning of the word touch physical contact and sexual intent she empathetically submitted that the legislature has interchangeably used the words touch and physical contact in section 7 and therefore restricting the meaning of the word physical contact to skin to skin contact would be a narrow interpretation of the said provision defeating the very object of the act she also pointed out that the high court had grossly erred in applying the principle of ejusdem generis which otherwise should not apply where it would defeat the object of the enactment similarly according to ms luthra the rule of lenity also would not be applicable there being no obscurity or uncertainty in the provisions of the pocso act 14 the learned senior advocate mr siddharth dave appointed as an amicus curiae also took the court to the scheme of the pocso act and specifically to sections 2 and 3 to submit that what is important for the purpose of section 7 is sexual intent bisecting section 7 into two parts mr dave submitted that the first part thereof pertains to the act of touching with sexual intent the vagina penis anus or breast of the child or making the child touch the said organs of such person or any other person and the second part pertains to any other act with sexual intent which involves physical contact without penetration thus according to him in both the limbs of section 7 the mens rea i e culpable mental state the 13 sexual intent of the person accused of the said offence is very material pressing into service section 29 30 of the pocso act mr dave submitted that the court is required to presume the existence of culpable mental state on the part of the accused and it is for the accused to prove in defence that he had no such mental state with respect to the act charged as an offence mr dave also relied upon the unreported judgments of various high courts to buttress his submission that touching in an indecent manner with culpable mental state would amount to sexual assault within the meaning of section 7 of the said act even though there was no skin to skin contact between the victim and the accused 15 mr rahul chitnis learned advocate appearing on behalf of the state of maharashtra adopting the submissions made by the learned attorney general for india ms geeta luthra and learned amicus curiae mr siddharth dave submitted that if the interpretation of section 7 of the pocso act made by the high court is accepted the very object of the act would be negated 16 per contra mr sidharth luthra learned senior advocate appearing for the accused in both the cases relied upon various provisions of the pocso act and of the ipc to submit that the offence under section 354 of ipc has a different connotation and different effect which could not be incorporated for the purpose of interpreting section 7 of the pocso act according to him the 14 phrases sexual intent touches and physical contact have not been defined in the pocso act however the explanation to section 11 states that any question which involves sexual intent shall be a question of fact placing reliance on the decision of the bombay high court in case of bandu vithalrao borwar v s state of maharashtra in criminal appeal no 50 of 2016 decided on 17 10 2016 he submitted that the expression sexual intent can not be confined to any predetermined format or structure he further submitted that unlike pocso act the ipc offence under section 354 uses the terms assault and criminal force however since sexual assault is defined under the pocso act the definition of the words assault or criminal force contained in ipc cannot be imported into the pocso act though permitted under section 2 2 of the pocso act while fairly conceding that the first part of section 7 of the pocso act which pertains to the act of touching the private parts of the child may not require skin to skin contact he however submitted that so far as the second part i e the other act with sexual intent which involves physical contact without penetration is concerned the skin to skin contact is required to be proved by the prosecution 17 as regards the presumption under sections 29 and 30 of the pocso act mr luthra tried to draw an analogy from similar provisions contained in the ndps act and submitted that the presumption and reverse burden of proof on the accused makes it 15 difficult for an accused to prove his innocence therefore any interpretation other than the strict interpretation would expand the scope of the offence and would not further the constitutional objective of article 21 in this regard he has placed reliance on the decisions of this court in the case of noor aga vs state of punjab and anr 1 sakshi vs union of india 2 and r kalyani vs janak c mehta ors 3 18 invoking the rule of lenity mr luthra submitted that this rule of statutory construction requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused or to strictly construe the statute against the state in this regard he has relied upon the decisions of the united states supreme court in the case of the united states vs wilt berger4 connally v general construction co 5 and in case of united states vs kozminski6 19 mr luthra learned senior counsel also took the court to the oral evidence adduced in both the cases and submitted that there were number of contradictions in the evidence of the informant and the witnesses examined by the prosecution and that it would be risky to convict the accused for the alleged offences under the pocso act on such unreliable and sketchy evidence 1 2008 16 scc 518 2 2004 5 scc 518 3 2009 1 scc 516 4 18 us 76 1820 5 269 u s 385 1926 6 487 u s 931 1988 16 legal provisions 20 before adverting to the rival submissions made by the learned counsels for the parties apt would be to refer to the relevant provisions of the pocso act as the long title of the protection of children from sexual offence act 2012 states the act has been enacted to protect the children from the offences of sexual assault sexual harassment and pornography and provide for establishment of special courts for trial of such offences and for the matters connected therewith or incidental thereto 21 section 7 pertaining to sexual assault reads as under 7 whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault 22 section 8 providing for the punishment for sexual assault reads as under 8 whoever commits sexual assault shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to fine 23 section 9 of the act enumerates as to what is said to commit aggravated sexual assault clause m of the said provision being relevant is reproduced as under 17 9 m whoever commits sexual assault on a child below twelve years 24 section 10 for providing punishment for aggravated sexual assault 10 whoever commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine 25 section 11 pertains to sexual harassment a person said to commit sexual harassment upon a child when such person with sexual intent i utters any word or makes any sound or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard or such gesture or object or part of body shall be seen by the child or ii makes a child exhibit his body or any part of his body so as it is seen by such person or any other person iii to vi explanation any question which involves sexual intent shall be a question of fact 26 section 12 for providing punishment for sexual harassment 12 whoever commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also liable to fine 18 27 sections 29 and 30 pertaining to the statutory presumptions read as under 29 when a person is prosecuted for committing or abetting or attempting to commit any offence under section 3 5 7 and section 9 of this act the special court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved 30 1 in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the special court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution 2 for the purposes of this section a fact is said to be proved only when the special court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability explanation in this section culpable mental state includes intention motive knowledge of a fact and the belief in or reason to believe a fact analysis 28 in both the cases the main controversy centers around the interpretation of section 7 of the pocso act it is trite saying that while interpreting a statute the courts should strive to ascertain the intention of the legislature enacting it and it is the duty of the courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible 19 abuse as observed by the supreme court in the case of j p bansal vs state of rajasthan anr reported in air 2003 sc 1405 a statute is an edict of the legislature the elementary principle of interpreting or construing a statute is to gather the mens or sententia legis the true intention of the legislature it has been observed therein that 12 interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought the task is not easy as the language is often misunderstood even in ordinary conversation or correspondence the tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification the legislature cannot be approached as the legislature after enacting a law or act becomes functus officio so far as that particular act is concerned and it cannot itself interpret it no doubt the legislature retains the power to amend or repeal the law so made and can also declare its meaning but that can be done only by making another law or statute after undertaking the whole process of law making 16 where therefore the language is clear the intention of the legislature is to be gathered from the language used what is to be borne in mind is as to what has been said in the statute as also what has not been said a construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided unless it is covered by the rule of 20 exception including that of necessity which is not the case here see gwalior rayons silk mfg wvg co ltd v custodian of vested forests air 1990 sc 1747 at p 1752 shyam kishori devi v patna municipal corpn air 1966 sc 1678 at p 1682 a r antulay v ramdas sriniwas nayak 1984 2 scc 500 at pp 518 519 indeed the court cannot reframe the legislation as it has no power to legislate see state of kerala v mathai verghese 1986 4 scc 746 at p 749 union of india v deoki nandan aggarwal air 1992 sc 96 at p 101 29 in the case of balaram kumawat vs union of india ors reported in 2003 7 scc 628 this court while elaborately discussing the basic rules of interpretation observed as under 20 contextual reading is a well known proposition of interpretation of statute the clauses of a statute should be construed with reference to the context vis Ć vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter the rule of ex visceribus actus should be resorted to in a situation of this nature 21 in state of w b v union of india air at p 1265 para 68 the learned chief justice stated the law thus the court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs 22 the said principle has been reiterated in r s raghunath v state of karnataka 1992 1 scc 335 1992 scc l s 286 1992 19 atc 507 air 1992 sc 81 air at p 89 21 23 furthermore even in relation to a penal statute any narrow and pedantic literal and lexical construction may not always be given effect to the law would have to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve the purpose of the law is not to allow the offender to sneak out of the meshes of law criminal jurisprudence does not say so 26 the courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used see salmon v duncombe 1886 11 ac 627 55 ljpc 69 55 lt 446 pc ac at p 634 reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to the courts would accept the bolder construction for the purpose of bringing about an effective result the courts when rule of purposive construction is gaining momentum should be very reluctant to hold that parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve see bbc enterprises v hi tech xtravision ltd 1990 2 all er 118 1990 ch 609 1990 2 wlr 1123 ca all er at pp 122 23 30 so far as the object of enacting the pocso act is concerned as transpiring from the statement of objects and reasons since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalized the pocso act was enacted to protect the children from the offences of sexual assault sexual harassment and pornography and to provide 22 for establishment of special courts for trial of such offences and for matters connected therewith and incidental thereto while enacting the said act article 15 of the constitution which empowers the state to make special provisions for children and the convention on the rights of the child adopted by the general assembly of the united nations as acceded to by the government of india prescribing a set of standards to be followed by all the state parties in securing the best interest of the child were also kept in view the pocso bill intended to enforce the rights of all children to safety security and protection from sexual abuse and exploitation and also intended to define explicitly the offences against children countered through commensurate penalties as an effective deterrence 31 now from the bare reading of section 7 of the act which pertains to the sexual assault it appears that it is in two parts the first part of the section mentions about the act of touching the specific sexual parts of the body with sexual intent the second part mentions about any other act done with sexual intent which involves physical contact without penetration since the bone of contention is raised by ld senior advocate mr luthra with regard to the words touch and physical contact used in the said section it would be beneficial first to refer to the dictionary meaning of the said words 32 the word touch as defined in the oxford advanced learner s dictionary means the sense that enables you to be aware of things and what are like when you put your hands and fingers on them 23 the word physical as defined in the advanced law lexicon 3rd edition means of or relating to body and the word contact means the state or condition of touching touch the act of touching thus having regard to the dictionary meaning of the words touch and physical contact the court finds much force in the submission of ms geetha luthra learned senior advocate appearing for the national commission for women that both the said words have been interchangeably used in section 7 by the legislature the word touch has been used specifically with regard to the sexual parts of the body whereas the word physical contact has been used for any other act therefore the act of touching the sexual part of body or any other act involving physical contact if done with sexual intent would amount to sexual assault within the meaning of section 7 of the pocso act 33 there cannot be any disagreement with the submission made by mr luthra for the accused that the expression sexual intent having not been explained in section 7 it cannot be confined to any predetermined format or structure and that it would be a question of fact however the submission of mr luthra that the expression physical contact used in section 7 has to be construed as skin to skin contact cannot be accepted as per the rule of construction contained in the maxim ut res magis valeat quam pereat the construction of a rule should give effect to the rule rather than destroying it any narrow and pedantic interpretation of the provision which would defeat the object of the provision cannot be 24 accepted it is also needless to say that where the intention of the legislature cannot be given effect to the courts would accept the bolder construction for the purpose of bringing about an effective result restricting the interpretation of the words touch or physical contact to skin to skin contact would not only be a narrow and pedantic interpretation of the provision contained in section 7 of the pocso act but it would lead to an absurd interpretation of the said provision skin to skin contact for constituting an offence of sexual assault could not have been intended or contemplated by the legislature the very object of enacting the pocso act is to protect the children from sexual abuse and if such a narrow interpretation is accepted it would lead to a very detrimental situation frustrating the very object of the act inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves condoms sheets or with cloth though done with sexual intent would not amount to an offence of sexual assault under section 7 of the pocso act the most important ingredient for constituting the offence of sexual assault under section 7 of the act is the sexual intent and not the skin to skin contact with the child 34 at this juncture it may also be beneficial to refer to the observations made by the foreign courts in the judgments cited by ms geetha luthra wherein the said courts while interpreting analogous provisions as prevalent in such countries have held that skin to skin contact is not required to constitute an offence of 25 sexual assault it is not the presence or lack of intervening material which should be focused upon but whether the contact made through the material comes within the definition prescribed for a particular statue has to be seen of course the judgments of the said courts proceed on the interpretation arising out of the terms defined in the provisions contained in the concerned legislations and are not pari materia to the language of section 7 of the pocso act nonetheless they would be relevant for the purpose of interpreting the expression touch and sexual assault in regina v h 2005 1 wlr 2005 the court of appeal while interpreting the word touching contained in section 3 of the sexual offences act 2003 as in force in u k observed that the touching of clothing would constitute touching for the purpose of said section 3 similarly in state of iowa v walter james phipps 442 n w 2d 611 the court of appeals of iowa held that a lack of skin to skin contact alone does not as a matter of law put the defendant s conduct outside the definition of sex act or sexual activity which has been defined in section 702 17 of iowa code 35 the act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of sexual assault under section 7 as held by this court in case of balaram kumawat vs union of india supra the law would have to be interpreted having regard to the subject matter of the offence and to the object 26 of the law it seeks to achieve the purpose of the law cannot be to allow the offender to sneak out of the meshes of law 36 it may also be pertinent to note that having regard to the seriousness of the offences under the pocso act the legislature has incorporated certain statutory presumptions section 29 permits the special court to presume when a person is prosecuted for committing or abetting or attempting to commit any offence under section 3 5 7 and section 9 of the act that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved similarly section 30 thereof permits the special court to presume for any offence under the act which requires a culpable mental state on the part of the accused the existence of such mental state of course the accused can take a defence and prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution it may further be noted that though as per sub section 2 of section 30 for the purposes of the said section a fact is said to be proved only when the special court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability the explanation to section 30 clarifies that culpable mental state includes intention motive knowledge of a fact and the belief in or reason to believe a fact thus on the conjoint reading of section 7 11 29 and 30 there remains no shadow of doubt that though as per the explanation to section 11 sexual intent would be a question of fact the special 27 court when it believes the existence of a fact beyond reasonable doubt can raise a presumption under section 30 as regards the existence of culpable mental state on the part of the accused 37 this takes the court to the next argument of mr luthra that there being an ambiguity due to lack of definition of the expressions sexual intent any other act touching and physical contact used in section 7 coupled with the presumptions under sections 29 and 30 of the act the reverse burden of proof on the accused would make it difficult for him to prove his innocence and therefore the pocso act must be strictly interpreted in the opinion of the court there cannot be any disagreement with the said submission of mr luthra in fact it has been laid down by this court in catina of decisions that the penal statute enacting an offence or imposing a penalty has to be strictly construed a beneficial reference of the decisions in the case of sakshi vs union of india reported in 2004 5 scc 518 in the case of r kalyani vs janak c mehta ors reported in 2009 1 scc 516 and in the case of state of punjab v gurmeet singh 2014 9 scc 632 be made in this regard however it is equally settled legal position that the clauses of a statute should be construed with reference to the context vis a vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter the court can not be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their 28 whole life and may also have an adverse effect on their mental state the suffering of the victims in certain cases may be immeasurable therefore considering the objects of the pocso act its provisions more particularly pertaining to the sexual assault sexual harassment etc have to be construed vis a vis the other provisions so as to make the objects of the act more meaningful and effective 38 the invocation of rule of lenity at the instance of mr luthra learned senior advocate is also thoroughly misconceived placing reliance on the various judgments of the united states supreme court in case of ladner vs united states 358 us 169 united states vs kozminski 487 us 931 united states vs wiltberger 18 us 76 mr luthra had sought to submit that the rule of lenity requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused or to strictly construe the statute against the state the said submission of mr luthra cannot be accepted in view of the settled proposition of law that the statutory ambiguity should be invoked as a last resort of interpretation where the legislature has manifested its intention courts may not manufacture ambiguity in order to defeat that intent in this regard ms geetha luthra has rightly relied upon the precise observations made by the court of appeal california in case of the people vs reid ii 246 cal app 4th 822 as follows 29 t he touchstone of the rule of lenity is statutory ambiguity citation bifulco v united states 1980 447 u s 381 387 100 s ct 2247 65 l ed 2d 205 the rule applies only if the court can do no more than guess what the legislative body intended there must be an egregious ambiguity and uncertainty to justify invoking the rule people v avery 2002 27 cal 4th 49 58 115 cal rptr 2d 403 38 p 3d 1 where the legislature has manifested its intention courts may not manufacture ambiguity in order to defeat that intent bifulco v united states supra at p 387 100 s ct 2247 additionally ambiguities are not interpreted in the defendant s favor if such an interpretation would provide an absurd result or a result inconsistent with apparent legislative intent people v cruz 1996 13 cal 4th 764 783 55 cal rptr 2d 117 919 p 2d 731 39 it is also trite that a court should not be over zealous in searching for ambiguities or obscurities in words which are plain irc vs rossminster ltd 1980 1 aller 80 so far as the provisions contained in section 7 of the pocso act are concerned the court does not find any ambiguity or obscurity so as to invoke the rule of lenity conclusion 40 in the light of the afore discussed legal position if the findings recorded by the high court are appreciated it clearly emerges that the high court fell into error in case of the accused satish in holding him guilty for the minor offences under sections 342 and 354 of ipc and acquitting him for the offence under section 8 of the pocso 30 act the high court while specifically accepting the consistent versions of the victim and her mother i e informant about the accused having taken the victim to his house having pressed the breast of the victim having attempted to remove her salwar and pressing her mouth had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast would not fall in the definition of sexual assault and would fall within the definition of offence under section 354 of the ipc the high court further erred in holding that there was no offence since there was no direct physical contact i e skin to skin with sexual intent 41 the interpretation of section 7 at the instance of the high court on the premise of the principle of ejusdem generis is also thoroughly misconceived it may be noted that the principle of ejusdem generis should be applied only as an aid to the construction of the statute it should not be applied where it would defeat the very legislative intent as per the settled legal position if the specific words used in the section exhaust a class it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words so far as section 7 of the pocso act is concerned the first part thereof exhausts a class of act of sexual assault using specific words and the other part uses the general act beyond the class denoted by the specific words in other words whoever with sexual intent touches the 31 vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person would be committing an offence of sexual assault similarly whoever does any other act with sexual intent which involves physical contact without penetration would also be committing the offence of sexual assault under section 7 of the pocso act in view of the discussion made earlier the prosecution was not required to prove a skin to skin contact for the purpose of proving the charge of sexual assault under section 7 of the act 42 the surrounding circumstances like the accused having taken the victim to his house the accused having lied to the mother of the victim that the victim was not in his house the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother were proved by the prosecution rather the said facts had remained unchallenged at the instance of the accused such basic facts having been proved by the prosecution the court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under section 30 of the said act the said presumption has not been rebutted by the accused by proving that he had no such mental state the allegation of sexual intent as contemplated under section 7 of the act therefore had also stood proved by the prosecution the court therefore is of the opinion that the prosecution had duly proved not only the sexual intent on the part of the accused but had also proved the alleged 32 acts that he had pressed the breast of the victim attempted to remove her salwar and had also exercised force by pressing her mouth all these acts were the acts of sexual assault as contemplated under section 7 punishable under section 8 of the pocso act 43 so far as the case of the other accused libnus is concerned the high court vide its impugned judgment and order while maintaining the conviction of the accused for the offences punishable under sections 448 and 354 a 1 i of the ipc read with section 12 of the pocso act has acquitted the accused for the offence under sections 8 and 10 of the pocso act pertinently the high court while recording the finding that the prosecution had established that the accused had entered into the house of the prosecutrix with the intention to outrage her modesty also held that the acts holding the hands of the prosecutrix or opened the zip of the pant did not fit in the definition of sexual assault in the opinion of the court the high court had fallen into a grave error in recording such findings when the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty of holding her hands and opening the zip of his pant showing his penis are held to be established by the prosecution there was no reason for the high court not to treat such acts as the acts of sexual assault within the meaning of section 7 of the pocso act the high court appears to have been swayed away by the minimum punishment of five years prescribed for the offence of aggravated 33 sexual assault under section 10 of the pocso act as the age of the prosecutrix was five years and the sexual assault if committed on the victim who is below 12 years is required to be treated as the aggravated sexual assault as per section 9 m of the act however neither the term of minimum punishment nor the age of the victim could be a ground to allow the accused t truncated reportable in the supreme court of india criminal appellate jurisdiction criminal appeal no 1410 of 2021 special leave petition crl no 925 of 2021 attorney general for india appellant s versus satish and another respondent s with criminal appeal no 1411 of 2021 special leave petition crl no 1339 of 2021 national commission for women appellant s versus the state of maharashtra and another respondent s with criminal appeal no 1412 of 2021 special leave petition crl no 1159 of 2021 the state of maharashtra appellant s versus satish respondent s with criminal appeal no 1413 of 2021 special leave petition crl no 5071 of 2021 1 the state of maharashtra appellant s versus libnus respondent s with criminal appeal no 1414 of 2021 special leave petition crl no 7472 of 2021 satish appellant s versus the state of maharashtra respondent s j u d g m e n t bela m trivedi j 1 leave granted in all appeals 2 the four appeals filed by the appellants attorney general for india by the national commission for women by the state of maharashtra and by the appellant accused satish respectively arising out of the judgment and order dated 19 01 2021 passed in criminal appeal no 161 of 2020 by the high court of judicature at bombay nagpur bench and the appeal filed by the appellant state of maharashtra arising out of the judgment and order dated 15 01 2021 passed in the criminal appeal no 445 of 2020 by the 2 same nagpur bench encompass similar contextual legal issues and therefore permit us this analogous adjudication i factual matrix in case of the accused satish 3 the extra joint additional sessions judge nagpur hereinafter referred to as the special court vide the judgment and order dated 5th february 2020 passed in the special child protection case no 28 2017 convicted and sentenced the accused satish for the offences under sections 342 354 and 363 of the indian penal code for short ipc and section 8 of the protection of children from sexual offences act 2012 for short pocso act being aggrieved by the same the accused satish had preferred an appeal being criminal appeal no 161 of 2020 in the high court of judicature at bombay nagpur bench by the judgment and order dated 19th january 2021 the high court disposed of the said appeal by acquitting the accused for the offence under section 8 of the pocso act and convicting him for the offence under sections 342 and 354 of the ipc the accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of rs 500 in default thereof to suffer r i for one month for the offence under section 354 and to undergo imprisonment for a period of six months and to pay fine of rs 500 in default thereof to suffer r i for one month for the offence under section 342 of ipc 3 4 the case of the prosecution before the special court as emerging from the record was that the informant happened to be the mother of the victim aged about 12 years the accused satish was residing in the same area where she was residing i e deepak nagar nagpur on 14 12 2016 at about 11 30 a m the victim had gone out to obtain guava since she did not return back for a long time the informant mother went in search of the victim at that time one lady sau divya uikey who was staying nearby told her that the neighbouring person the accused had taken her daughter along with him to his house the informant therefore went to the house of the accused the accused at that time came down from the first floor of his house the informant having made inquiry about her daughter the accused told her that she was not there in his house the informant however barged into the house of the accused to search her daughter as she heard the shouts coming from a room situated on the first floor she went to the first floor and found that the door of the room was bolted from outside she opened the door and found her daughter who was crying in the room on making inquiry as to what had happened her daughter told her that the accused had asked her to come with him and told her that he would give her a guava he took her to his house he then pressed her breast and tried to remove her salwar at that time the victim tried to shout but the accused pressed her mouth the accused thereafter left the room and bolted the door from outside the informant on having learnt such facts went to the 4 police station along with her daughter to lodge the complaint the said complaint was registered as crime no 405 2016 at police station gittikhadan nagpur it was further case of the prosecution that when the police rushed to the spot they saw that the accused was trying to commit suicide by hanging himself he therefore was sent to the hospital for treatment the spot panchanama was drawn and the statement of the victim was got recorded under section 164 of code of criminal procedure before the magistrate after the completion of the investigation the charge sheet was filed in the special court nagpur against the accused the special court after appreciating the evidence on record passed the judgment and order of conviction and sentence as stated hereinabove 5 the high court in the appeal filed by the accused satish acquitted the accused for the offence under section 8 of the pocso act and convicted him for the minor offence under sections 342 and 354 of ipc by making following observations 18 evidently it is not the case of the prosecution that the appellant removed her top and pressed her breast the punishment provided for offence of sexual assault is imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to fine considering the stringent nature of punishment provided for the offence in the opinion of this court stricter proof and serious allegations are required the act of pressing of breast of the child aged 12 years in the absence of any specific details as to whether 5 the top was removed or whether he inserted his hand inside top and pressed her breast would not fall in the definition of sexual assault it would certainly fall within the definition of the offence under section 354 of the indian penal code for ready reference section 354 of the indian penal code is reproduced below 354 assault or criminal force to woman with intent to outrage her modesty whoever assaults or uses criminal force to any woman with the intention to outrage her modesty shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine 19 so the act of pressing breast can be a criminal force to a woman girl with the intention to outrage her modesty the minimum punishment provided for this offence is one year which may extend to five years and shall also be liable to fine 20 to 25 26 it is not possible to accept this submission for the aforesaid reasons admittedly it is not the case of the prosecution that the appellant removed her top and pressed her breast as such there is no direct physical contact i e skin to skin with sexual intent without penetration 6 the above observations findings made by the high court have caused the attorney general for india the national commission for women and the state of maharashtra to file the appeals before this court the accused has also filed the appeal challenging his conviction for the offences under section 354 and 342 of the ipc 6 ii factual matrix in the case of the accused libnus 7 the additional sessions judge gadchiroli hereinafter referred to as the special court vide the judgment and order dated 5th october 2020 passed in the special pocso case no 07 2019 convicted and sentenced the accused libnus s o fransis kujur for the offences punishable under section 448 and 354 a 1 i of ipc and sections 8 and 10 read with section 9 m and 12 of the pocso act being aggrieved by the same the accused libnus had preferred an appeal being criminal appeal no 445 of 2020 in the high court of judicature at bombay nagpur bench vide the judgment and order dated 15th january 2021 the high court maintained the conviction of the accused for the offences under sections 448 and 354 a 1 i of the ipc read with section 12 of the pocso act and set aside the conviction of the accused for the offences under sections 8 and 10 of the pocso act the high court considering the nature of the alleged acts and the punishment provided for the alleged offences modified the sentence imposed by the special court to the extent he had already undergone and directed to set him free 8 the case of the prosecution before the special court as emerging from the record was that the informant happened to be the mother of the victim aged about five years the informant used 7 to do domestic work at some houses in the town for which she had to leave home at about 8 00 o clock in the morning and return at about 4 00 o clock in the afternoon on 11 02 2018 at about 8 00 o clock she had left for her work leaving her two daughters at home on that day her husband had also gone out to village chavela when she returned home at about 4 00 o clock in the afternoon she saw one person catching hold of a hand of her elder daughter i e victim and also saw her daughter raising her pant upwards she therefore shouted and asked who he was and what was he doing the said person released the hand of her daughter and turned back thereupon she found that the said person was libnus fransis who was residing nearby her house he told her that he had come to see her husband as he had some work when he started leaving the informant saw that the zip of his pant was open she therefore started shouting and abusing him on hearing the shouts her neighbours namely chhaya dnyanbaji pagade sayabai kailas barsagade and madhuri santosh kohchade came rushing to her house and in the meantime the said libnus f kujur ran away when she inquired her daughter as to what had happened her daughter told her that the said kujur came home asking about her father when she told him that her father had gone to a village and her mother had gone out for the work the said kujur caught her hands and moved her frock upward with one hand and lowered her pant with the other hand he thereafter unzipped his pant and showed his penis to her and then asked her 8 to lay down on wooden cot her daughter thereafter started crying all the ladies gathered there tried to search the accused but he was not found thereafter the informant alongwith her minor daughter and her neighbours chhaya dnyanbaji pagade and others went to the gadchiroli police station to lodge the report against libnus the said report of the informant came to be registered as the crime bearing no 63 2018 at the said police station for the offences punishable under sections 354 a 1 i and 448 of the ipc and sections 8 10 and 12 read with section 9 m and section 11 i of the pocso act after the completion of the investigation the charge sheet was filed before the special court nagpur the special court after appreciating the evidence on record passed the judgment and order of conviction and sentence as stated hereinabove 9 the high court in the appeal filed by the accused libnus while setting aside the conviction for the offences under sections 8 and 10 of the pocso act and maintaining the conviction for the offences under sections 448 and 354 a 1 i of ipc read with section 12 of the pocso act observed as under 9 in the case in hand undisputedly the age of the prosecutrix is five years if the offence of sexual assault is proved against the appellant accused the prosecutrix being of age below twelve years the conviction has to be recorded for the offence of aggravated sexual assault 10 the punishment for aggravated sexual assault is imprisonment of either 9 description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine 11 the appellant accused is prosecuted for the charge of aggravated sexual assault as per the definition of sexual assault a physical contact with sexual intent without penetration is essential ingredient for the offence the definition starts with the words whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any other act with sexual intent the words any other act encompasses within itself the nature of the acts which are similar to the acts which have been specifically mentioned in the definition on the premise of the principle of ejusdem generis the act should be of the same nature or closure to that the acts of holding the hands of the prosecutrix or opened zip of the pant as has been allegedly witnessed by pw 1 in the opinion of this court does not fit in the definition of sexual assault 12 the minimum sentence of this offence is five years imprisonment considering the nature of the offence and the sentence prescribed the aforesaid acts are not sufficient for fixing the criminal liability on the appellant accused for the alleged offence of aggravated sexual assault at the most the minor offence punishable under section 354 a 1 i of the ipc r w section 12 of the pocso act is proved against the appellant 13 in this view of the matter the prosecution could establish that appellant accused entered into the house of the prosecutrix with the intention of outraged her modesty or sexual harassment as defined u s 11 of the pocso act therefore the conviction of the appellant accused for the offence 10 punishable under sections 448 and 354 a 1 i of the ipc r w section 12 of the pocso act is maintained the punishment provided for the offence u s 345 a 1 i of the ipc and section 12 of the pocso act is sentence for a term which may extend to 3 years or and fine or with both the punishment for the offence of house trespass is imprisonment for a term upto one year and fine upto rs 1000 or with both it is informed that till date the appellant accused has undergone total imprisonment of about 5 months 10 being aggrieved by the said judgment and order passed by the high court the state of maharashtra has filed the present appeal submissions 11 we have heard the learned attorney general for india mr k k venugopal the learned senior advocate ms geeta luthra appearing for the national commission for women the learned advocate mr rahul chitnis appearing on behalf of the state of maharashtra the learned amicus curiae mr siddharth dave to assist the court and the learned senior advocate mr siddharth luthra appearing on behalf of the supreme court legal services committee for the accused satish and the accused libnus 12 the learned attorney general for india mr k k venugopal expressing grave concern about the manner in which the provisions contained in the pocso act were interpreted by the high court vehemently submitted that such interpretation would lead to 11 devastating effect in the society at large according to him the high court could not have acquitted the accused satish mis interpreting the provisions contained in section 7 on the ground that there was no direct physical contact i e skin to skin contact made by the accused with the victim he submitted that all the alleged acts of the accused i e taking the victim to his house trying to remove her salwar pressing her breast and pressing her mouth when she started shouting were the acts amounting to sexual assault within the meaning of section 7 punishable with section 8 of the pocso act 13 supplementing the said submissions made by the learned attorney general the learned senior counsel ms geeta luthra relied upon the objects and reasons for enacting the pocso act to submit that since the sexual offences against women were not adequately addressed by the existing laws the pocso act was specifically enacted to protect the children from the offences of sexual assault sexual harassment and pornography ms luthra also relied upon the views of the parliamentary committee appointed for the purpose of examining the bill with regard to the protection of children from sexual harassment to submit that the sexual offences as defined in clauses 3 and 7 of the bill intended to cover all the likely situations required to be covered thereunder ms luthra also relied upon a number of judgments of various courts of the united kingdom and of the united states of america as also of 12 this court to emphasis the legislative intent behind enacting the pocso act taking the court to the dictionary meaning of the word touch physical contact and sexual intent she empathetically submitted that the legislature has interchangeably used the words touch and physical contact in section 7 and therefore restricting the meaning of the word physical contact to skin to skin contact would be a narrow interpretation of the said provision defeating the very object of the act she also pointed out that the high court had grossly erred in applying the principle of ejusdem generis which otherwise should not apply where it would defeat the object of the enactment similarly according to ms luthra the rule of lenity also would not be applicable there being no obscurity or uncertainty in the provisions of the pocso act 14 the learned senior advocate mr siddharth dave appointed as an amicus curiae also took the court to the scheme of the pocso act and specifically to sections 2 and 3 to submit that what is important for the purpose of section 7 is sexual intent bisecting section 7 into two parts mr dave submitted that the first part thereof pertains to the act of touching with sexual intent the vagina penis anus or breast of the child or making the child touch the said organs of such person or any other person and the second part pertains to any other act with sexual intent which involves physical contact without penetration thus according to him in both the limbs of section 7 the mens rea i e culpable mental state the 13 sexual intent of the person accused of the said offence is very material pressing into service section 29 30 of the pocso act mr dave submitted that the court is required to presume the existence of culpable mental state on the part of the accused and it is for the accused to prove in defence that he had no such mental state with respect to the act charged as an offence mr dave also relied upon the unreported judgments of various high courts to buttress his submission that touching in an indecent manner with culpable mental state would amount to sexual assault within the meaning of section 7 of the said act even though there was no skin to skin contact between the victim and the accused 15 mr rahul chitnis learned advocate appearing on behalf of the state of maharashtra adopting the submissions made by the learned attorney general for india ms geeta luthra and learned amicus curiae mr siddharth dave submitted that if the interpretation of section 7 of the pocso act made by the high court is accepted the very object of the act would be negated 16 per contra mr sidharth luthra learned senior advocate appearing for the accused in both the cases relied upon various provisions of the pocso act and of the ipc to submit that the offence under section 354 of ipc has a different connotation and different effect which could not be incorporated for the purpose of interpreting section 7 of the pocso act according to him the 14 phrases sexual intent touches and physical contact have not been defined in the pocso act however the explanation to section 11 states that any question which involves sexual intent shall be a question of fact placing reliance on the decision of the bombay high court in case of bandu vithalrao borwar v s state of maharashtra in criminal appeal no 50 of 2016 decided on 17 10 2016 he submitted that the expression sexual intent can not be confined to any predetermined format or structure he further submitted that unlike pocso act the ipc offence under section 354 uses the terms assault and criminal force however since sexual assault is defined under the pocso act the definition of the words assault or criminal force contained in ipc cannot be imported into the pocso act though permitted under section 2 2 of the pocso act while fairly conceding that the first part of section 7 of the pocso act which pertains to the act of touching the private parts of the child may not require skin to skin contact he however submitted that so far as the second part i e the other act with sexual intent which involves physical contact without penetration is concerned the skin to skin contact is required to be proved by the prosecution 17 as regards the presumption under sections 29 and 30 of the pocso act mr luthra tried to draw an analogy from similar provisions contained in the ndps act and submitted that the presumption and reverse burden of proof on the accused makes it 15 difficult for an accused to prove his innocence therefore any interpretation other than the strict interpretation would expand the scope of the offence and would not further the constitutional objective of article 21 in this regard he has placed reliance on the decisions of this court in the case of noor aga vs state of punjab and anr 1 sakshi vs union of india 2 and r kalyani vs janak c mehta ors 3 18 invoking the rule of lenity mr luthra submitted that this rule of statutory construction requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused or to strictly construe the statute against the state in this regard he has relied upon the decisions of the united states supreme court in the case of the united states vs wilt berger4 connally v general construction co 5 and in case of united states vs kozminski6 19 mr luthra learned senior counsel also took the court to the oral evidence adduced in both the cases and submitted that there were number of contradictions in the evidence of the informant and the witnesses examined by the prosecution and that it would be risky to convict the accused for the alleged offences under the pocso act on such unreliable and sketchy evidence 1 2008 16 scc 518 2 2004 5 scc 518 3 2009 1 scc 516 4 18 us 76 1820 5 269 u s 385 1926 6 487 u s 931 1988 16 legal provisions 20 before adverting to the rival submissions made by the learned counsels for the parties apt would be to refer to the relevant provisions of the pocso act as the long title of the protection of children from sexual offence act 2012 states the act has been enacted to protect the children from the offences of sexual assault sexual harassment and pornography and provide for establishment of special courts for trial of such offences and for the matters connected therewith or incidental thereto 21 section 7 pertaining to sexual assault reads as under 7 whoever with sexual intent touches the vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault 22 section 8 providing for the punishment for sexual assault reads as under 8 whoever commits sexual assault shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to fine 23 section 9 of the act enumerates as to what is said to commit aggravated sexual assault clause m of the said provision being relevant is reproduced as under 17 9 m whoever commits sexual assault on a child below twelve years 24 section 10 for providing punishment for aggravated sexual assault 10 whoever commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine 25 section 11 pertains to sexual harassment a person said to commit sexual harassment upon a child when such person with sexual intent i utters any word or makes any sound or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard or such gesture or object or part of body shall be seen by the child or ii makes a child exhibit his body or any part of his body so as it is seen by such person or any other person iii to vi explanation any question which involves sexual intent shall be a question of fact 26 section 12 for providing punishment for sexual harassment 12 whoever commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also liable to fine 18 27 sections 29 and 30 pertaining to the statutory presumptions read as under 29 when a person is prosecuted for committing or abetting or attempting to commit any offence under section 3 5 7 and section 9 of this act the special court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved 30 1 in any prosecution for any offence under this act which requires a culpable mental state on the part of the accused the special court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution 2 for the purposes of this section a fact is said to be proved only when the special court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability explanation in this section culpable mental state includes intention motive knowledge of a fact and the belief in or reason to believe a fact analysis 28 in both the cases the main controversy centers around the interpretation of section 7 of the pocso act it is trite saying that while interpreting a statute the courts should strive to ascertain the intention of the legislature enacting it and it is the duty of the courts to accept an interpretation or construction which promotes the object of the legislation and prevents its possible 19 abuse as observed by the supreme court in the case of j p bansal vs state of rajasthan anr reported in air 2003 sc 1405 a statute is an edict of the legislature the elementary principle of interpreting or construing a statute is to gather the mens or sententia legis the true intention of the legislature it has been observed therein that 12 interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought the task is not easy as the language is often misunderstood even in ordinary conversation or correspondence the tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification the legislature cannot be approached as the legislature after enacting a law or act becomes functus officio so far as that particular act is concerned and it cannot itself interpret it no doubt the legislature retains the power to amend or repeal the law so made and can also declare its meaning but that can be done only by making another law or statute after undertaking the whole process of law making 16 where therefore the language is clear the intention of the legislature is to be gathered from the language used what is to be borne in mind is as to what has been said in the statute as also what has not been said a construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided unless it is covered by the rule of 20 exception including that of necessity which is not the case here see gwalior rayons silk mfg wvg co ltd v custodian of vested forests air 1990 sc 1747 at p 1752 shyam kishori devi v patna municipal corpn air 1966 sc 1678 at p 1682 a r antulay v ramdas sriniwas nayak 1984 2 scc 500 at pp 518 519 indeed the court cannot reframe the legislation as it has no power to legislate see state of kerala v mathai verghese 1986 4 scc 746 at p 749 union of india v deoki nandan aggarwal air 1992 sc 96 at p 101 29 in the case of balaram kumawat vs union of india ors reported in 2003 7 scc 628 this court while elaborately discussing the basic rules of interpretation observed as under 20 contextual reading is a well known proposition of interpretation of statute the clauses of a statute should be construed with reference to the context vis Ć vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter the rule of ex visceribus actus should be resorted to in a situation of this nature 21 in state of w b v union of india air at p 1265 para 68 the learned chief justice stated the law thus the court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs 22 the said principle has been reiterated in r s raghunath v state of karnataka 1992 1 scc 335 1992 scc l s 286 1992 19 atc 507 air 1992 sc 81 air at p 89 21 23 furthermore even in relation to a penal statute any narrow and pedantic literal and lexical construction may not always be given effect to the law would have to be interpreted having regard to the subject matter of the offence and the object of the law it seeks to achieve the purpose of the law is not to allow the offender to sneak out of the meshes of law criminal jurisprudence does not say so 26 the courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used see salmon v duncombe 1886 11 ac 627 55 ljpc 69 55 lt 446 pc ac at p 634 reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to the courts would accept the bolder construction for the purpose of bringing about an effective result the courts when rule of purposive construction is gaining momentum should be very reluctant to hold that parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve see bbc enterprises v hi tech xtravision ltd 1990 2 all er 118 1990 ch 609 1990 2 wlr 1123 ca all er at pp 122 23 30 so far as the object of enacting the pocso act is concerned as transpiring from the statement of objects and reasons since the sexual offences against children were not adequately addressed by the existing laws and a large number of such offences were neither specifically provided for nor were they adequately penalized the pocso act was enacted to protect the children from the offences of sexual assault sexual harassment and pornography and to provide 22 for establishment of special courts for trial of such offences and for matters connected therewith and incidental thereto while enacting the said act article 15 of the constitution which empowers the state to make special provisions for children and the convention on the rights of the child adopted by the general assembly of the united nations as acceded to by the government of india prescribing a set of standards to be followed by all the state parties in securing the best interest of the child were also kept in view the pocso bill intended to enforce the rights of all children to safety security and protection from sexual abuse and exploitation and also intended to define explicitly the offences against children countered through commensurate penalties as an effective deterrence 31 now from the bare reading of section 7 of the act which pertains to the sexual assault it appears that it is in two parts the first part of the section mentions about the act of touching the specific sexual parts of the body with sexual intent the second part mentions about any other act done with sexual intent which involves physical contact without penetration since the bone of contention is raised by ld senior advocate mr luthra with regard to the words touch and physical contact used in the said section it would be beneficial first to refer to the dictionary meaning of the said words 32 the word touch as defined in the oxford advanced learner s dictionary means the sense that enables you to be aware of things and what are like when you put your hands and fingers on them 23 the word physical as defined in the advanced law lexicon 3rd edition means of or relating to body and the word contact means the state or condition of touching touch the act of touching thus having regard to the dictionary meaning of the words touch and physical contact the court finds much force in the submission of ms geetha luthra learned senior advocate appearing for the national commission for women that both the said words have been interchangeably used in section 7 by the legislature the word touch has been used specifically with regard to the sexual parts of the body whereas the word physical contact has been used for any other act therefore the act of touching the sexual part of body or any other act involving physical contact if done with sexual intent would amount to sexual assault within the meaning of section 7 of the pocso act 33 there cannot be any disagreement with the submission made by mr luthra for the accused that the expression sexual intent having not been explained in section 7 it cannot be confined to any predetermined format or structure and that it would be a question of fact however the submission of mr luthra that the expression physical contact used in section 7 has to be construed as skin to skin contact cannot be accepted as per the rule of construction contained in the maxim ut res magis valeat quam pereat the construction of a rule should give effect to the rule rather than destroying it any narrow and pedantic interpretation of the provision which would defeat the object of the provision cannot be 24 accepted it is also needless to say that where the intention of the legislature cannot be given effect to the courts would accept the bolder construction for the purpose of bringing about an effective result restricting the interpretation of the words touch or physical contact to skin to skin contact would not only be a narrow and pedantic interpretation of the provision contained in section 7 of the pocso act but it would lead to an absurd interpretation of the said provision skin to skin contact for constituting an offence of sexual assault could not have been intended or contemplated by the legislature the very object of enacting the pocso act is to protect the children from sexual abuse and if such a narrow interpretation is accepted it would lead to a very detrimental situation frustrating the very object of the act inasmuch as in that case touching the sexual or non sexual parts of the body of a child with gloves condoms sheets or with cloth though done with sexual intent would not amount to an offence of sexual assault under section 7 of the pocso act the most important ingredient for constituting the offence of sexual assault under section 7 of the act is the sexual intent and not the skin to skin contact with the child 34 at this juncture it may also be beneficial to refer to the observations made by the foreign courts in the judgments cited by ms geetha luthra wherein the said courts while interpreting analogous provisions as prevalent in such countries have held that skin to skin contact is not required to constitute an offence of 25 sexual assault it is not the presence or lack of intervening material which should be focused upon but whether the contact made through the material comes within the definition prescribed for a particular statue has to be seen of course the judgments of the said courts proceed on the interpretation arising out of the terms defined in the provisions contained in the concerned legislations and are not pari materia to the language of section 7 of the pocso act nonetheless they would be relevant for the purpose of interpreting the expression touch and sexual assault in regina v h 2005 1 wlr 2005 the court of appeal while interpreting the word touching contained in section 3 of the sexual offences act 2003 as in force in u k observed that the touching of clothing would constitute touching for the purpose of said section 3 similarly in state of iowa v walter james phipps 442 n w 2d 611 the court of appeals of iowa held that a lack of skin to skin contact alone does not as a matter of law put the defendant s conduct outside the definition of sex act or sexual activity which has been defined in section 702 17 of iowa code 35 the act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent could not be trivialized or held insignificant or peripheral so as to exclude such act from the purview of sexual assault under section 7 as held by this court in case of balaram kumawat vs union of india supra the law would have to be interpreted having regard to the subject matter of the offence and to the object 26 of the law it seeks to achieve the purpose of the law cannot be to allow the offender to sneak out of the meshes of law 36 it may also be pertinent to note that having regard to the seriousness of the offences under the pocso act the legislature has incorporated certain statutory presumptions section 29 permits the special court to presume when a person is prosecuted for committing or abetting or attempting to commit any offence under section 3 5 7 and section 9 of the act that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved similarly section 30 thereof permits the special court to presume for any offence under the act which requires a culpable mental state on the part of the accused the existence of such mental state of course the accused can take a defence and prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution it may further be noted that though as per sub section 2 of section 30 for the purposes of the said section a fact is said to be proved only when the special court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability the explanation to section 30 clarifies that culpable mental state includes intention motive knowledge of a fact and the belief in or reason to believe a fact thus on the conjoint reading of section 7 11 29 and 30 there remains no shadow of doubt that though as per the explanation to section 11 sexual intent would be a question of fact the special 27 court when it believes the existence of a fact beyond reasonable doubt can raise a presumption under section 30 as regards the existence of culpable mental state on the part of the accused 37 this takes the court to the next argument of mr luthra that there being an ambiguity due to lack of definition of the expressions sexual intent any other act touching and physical contact used in section 7 coupled with the presumptions under sections 29 and 30 of the act the reverse burden of proof on the accused would make it difficult for him to prove his innocence and therefore the pocso act must be strictly interpreted in the opinion of the court there cannot be any disagreement with the said submission of mr luthra in fact it has been laid down by this court in catina of decisions that the penal statute enacting an offence or imposing a penalty has to be strictly construed a beneficial reference of the decisions in the case of sakshi vs union of india reported in 2004 5 scc 518 in the case of r kalyani vs janak c mehta ors reported in 2009 1 scc 516 and in the case of state of punjab v gurmeet singh 2014 9 scc 632 be made in this regard however it is equally settled legal position that the clauses of a statute should be construed with reference to the context vis a vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter the court can not be oblivious to the fact that the impact of traumatic sexual assault committed on children of tender age could endure during their 28 whole life and may also have an adverse effect on their mental state the suffering of the victims in certain cases may be immeasurable therefore considering the objects of the pocso act its provisions more particularly pertaining to the sexual assault sexual harassment etc have to be construed vis a vis the other provisions so as to make the objects of the act more meaningful and effective 38 the invocation of rule of lenity at the instance of mr luthra learned senior advocate is also thoroughly misconceived placing reliance on the various judgments of the united states supreme court in case of ladner vs united states 358 us 169 united states vs kozminski 487 us 931 united states vs wiltberger 18 us 76 mr luthra had sought to submit that the rule of lenity requires a court to resolve statutory ambiguity in a criminal statute in favour of the accused or to strictly construe the statute against the state the said submission of mr luthra cannot be accepted in view of the settled proposition of law that the statutory ambiguity should be invoked as a last resort of interpretation where the legislature has manifested its intention courts may not manufacture ambiguity in order to defeat that intent in this regard ms geetha luthra has rightly relied upon the precise observations made by the court of appeal california in case of the people vs reid ii 246 cal app 4th 822 as follows 29 t he touchstone of the rule of lenity is statutory ambiguity citation bifulco v united states 1980 447 u s 381 387 100 s ct 2247 65 l ed 2d 205 the rule applies only if the court can do no more than guess what the legislative body intended there must be an egregious ambiguity and uncertainty to justify invoking the rule people v avery 2002 27 cal 4th 49 58 115 cal rptr 2d 403 38 p 3d 1 where the legislature has manifested its intention courts may not manufacture ambiguity in order to defeat that intent bifulco v united states supra at p 387 100 s ct 2247 additionally ambiguities are not interpreted in the defendant s favor if such an interpretation would provide an absurd result or a result inconsistent with apparent legislative intent people v cruz 1996 13 cal 4th 764 783 55 cal rptr 2d 117 919 p 2d 731 39 it is also trite that a court should not be over zealous in searching for ambiguities or obscurities in words which are plain irc vs rossminster ltd 1980 1 aller 80 so far as the provisions contained in section 7 of the pocso act are concerned the court does not find any ambiguity or obscurity so as to invoke the rule of lenity conclusion 40 in the light of the afore discussed legal position if the findings recorded by the high court are appreciated it clearly emerges that the high court fell into error in case of the accused satish in holding him guilty for the minor offences under sections 342 and 354 of ipc and acquitting him for the offence under section 8 of the pocso 30 act the high court while specifically accepting the consistent versions of the victim and her mother i e informant about the accused having taken the victim to his house having pressed the breast of the victim having attempted to remove her salwar and pressing her mouth had committed gross error in holding that the act of pressing of breast of the child aged 12 years in absence of any specific details as to whether the top was removed or whether he inserted his hands inside the top and pressed her breast would not fall in the definition of sexual assault and would fall within the definition of offence under section 354 of the ipc the high court further erred in holding that there was no offence since there was no direct physical contact i e skin to skin with sexual intent 41 the interpretation of section 7 at the instance of the high court on the premise of the principle of ejusdem generis is also thoroughly misconceived it may be noted that the principle of ejusdem generis should be applied only as an aid to the construction of the statute it should not be applied where it would defeat the very legislative intent as per the settled legal position if the specific words used in the section exhaust a class it has to be construed that the legislative intent was to use the general word beyond the class denoted by the specific words so far as section 7 of the pocso act is concerned the first part thereof exhausts a class of act of sexual assault using specific words and the other part uses the general act beyond the class denoted by the specific words in other words whoever with sexual intent touches the 31 vagina penis anus or breast of the child or makes the child touch the vagina penis anus or breast of such person or any other person would be committing an offence of sexual assault similarly whoever does any other act with sexual intent which involves physical contact without penetration would also be committing the offence of sexual assault under section 7 of the pocso act in view of the discussion made earlier the prosecution was not required to prove a skin to skin contact for the purpose of proving the charge of sexual assault under section 7 of the act 42 the surrounding circumstances like the accused having taken the victim to his house the accused having lied to the mother of the victim that the victim was not in his house the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother were proved by the prosecution rather the said facts had remained unchallenged at the instance of the accused such basic facts having been proved by the prosecution the court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under section 30 of the said act the said presumption has not been rebutted by the accused by proving that he had no such mental state the allegation of sexual intent as contemplated under section 7 of the act therefore had also stood proved by the prosecution the court therefore is of the opinion that the prosecution had duly proved not only the sexual intent on the part of the accused but had also proved the alleged 32 acts that he had pressed the breast of the victim attempted to remove her salwar and had also exercised force by pressing her mouth all these acts were the acts of sexual assault as contemplated under section 7 punishable under section 8 of the pocso act 43 so far as the case of the other accused libnus is concerned the high court vide its impugned judgment and order while maintaining the conviction of the accused for the offences punishable under sections 448 and 354 a 1 i of the ipc read with section 12 of the pocso act has acquitted the accused for the offence under sections 8 and 10 of the pocso act pertinently the high court while recording the finding that the prosecution had established that the accused had entered into the house of the prosecutrix with the intention to outrage her modesty also held that the acts holding the hands of the prosecutrix or opened the zip of the pant did not fit in the definition of sexual assault in the opinion of the court the high court had fallen into a grave error in recording such findings when the alleged acts of entering the house of the prosecutrix with sexual intent to outrage her modesty of holding her hands and opening the zip of his pant showing his penis are held to be established by the prosecution there was no reason for the high court not to treat such acts as the acts of sexual assault within the meaning of section 7 of the pocso act the high court appears to have been swayed away by the minimum punishment of five years prescribed for the offence of aggravated 33 sexual assault under section 10 of the pocso act as the age of the prosecutrix was five years and the sexual assault if committed on the victim who is below 12 years is required to be treated as the aggravated sexual assault as per section 9 m of the act however neither the term of minimum punishment nor the age of the victim could be a ground to allow the accused t truncated 2347 2019_c a no 001137 2019 herein so as to enable it to settle the claim 2 the facts in brief giving rise to the present appeal are as company appeal the national company law tribunal nclt 2017 05 17 giving rise to the present appeal are as 1137 of 2019 limited v kirusa ltd v g ltd v g 1997 fca 681 ltd v hanave ltd v hanave yong v letchumanan yong v letchumanan 1980 ac 331 australia v wall australia v wall ltd v rp ltd v commonwealth ltd v commonwealth ltd v white ltd v white ltd v kilpatrick ltd v kilpatrick ltd v holder ltd v holder ltd v century ltd v century ltd v condensing ltd v condensing ltd v woodlock ltd v woodlock ltd v commonwealth ltd v commonwealth reportable in the supreme court of india civil appellate jurisdiction civil appeal no 1137 of 2019 kay bouvet engineering ltd appellant s versus overseas infrastructure alliance india private limited respondent s j u d g m e n t b r gavai j 1 this appeal challenges the judgment and order passed by the national company law appellate tribunal hereinafter referred to as the nclat dated 21st december 2018 thereby allowing the appeal filed by respondent herein the respondent herein had preferred an appeal being company appeal at insolvency no 582 of 2018 challenging the order passed by the national company law tribunal hereinafter referred to as 1 the nclt dated 26th july 2018 thereby rejecting the petition being c p ib 20 mb 2018 filed by the respondent herein under section 9 of the insolvency and bankruptcy code hereinafter referred to as the ibc by the impugned order dated 21st december 2018 the nclat while allowing the appeal has remitted back the matter to the nclt with a direction to admit the petition filed by the respondent herein under section 9 of the ibc after giving limited notice to the appellant herein so as to enable it to settle the claim 2 the facts in brief giving rise to the present appeal are as under the government of india extended dollar line of credit hereinafter referred to as the loc of usd 150 million to the republic of sudan through exim bank of india hereinafter referred to as the exim bank for carrying out mashkour sugar project in sudan this was in two tranches of usd 25 million and usd 125 million on 26th january 2009 the first tranche of usd 25 million was executed between republic of 2 sudan and exim bank for financing the mashkour sugar project on 11th october 2009 mashkour sugar company limited sudan hereinafter referred to as the mashkour entered into an agreement with the respondent overseas infrastructure alliance india private limited hereinafter referred to as the overseas for usd 149 975 000 to be financed by exim bank as per the said agreement mashkour was to nominate a sub contractor a subsequent agreement was entered into on 14th april 2010 between mashkour and overseas for payment of usd 25 million to overseas towards design and engineering package and plant civil package including site mobilization in response to the invitation by mashkour the appellant kay bouvet engineering limited hereinafter referred to as the kay bouvet submitted its bid as a sub contractor for supply erection and completion of the sugar plant at sudan which was accepted by mashkour on 18th december 2010 a memorandum of understanding hereinafter referred to as the mou was entered into between mashkour overseas and kay bouvet at khartoum sudan the 3 said mou provided that the contract has to be governed by the laws of sudan the same mou also defined roles and responsibilities of each of the parties on the same date a tripartite agreement was also executed between all the three parties vide which kay bouvet was appointed as a sub contractor for executing the whole work of designing engineering supply installation erection testing and completion of factory plant for mashkour sugar company for an amount of usd 106 200 million 3 on 29th march 2011 overseas vide an e mail sent to mashkour confirmed that under the tripartite agreement mashkour was to release payment of first tranche of loc to overseas and the overseas in turn was to release payment of usd 10 62 million to kay bouvet on submission of advance bank guarantee and performance bank guarantee by kay bouvet to mashkour vide letter dated 21st april 2011 exim bank informed overseas that an amount of rs 46 58 crore had been remitted to its bank account overseas vide letter of the 4 same date confirmed to mashkour about receipt of funds and further informed that it will release usd 10 62 million to kay bouvet on submission of requisite bank guarantees on 28th july 2011 kay bouvet informed overseas that it had submitted necessary guarantees to mashkour on the advice of mashkour overseas paid an amount of rs 47 12 10 000 to kay bouvet there were certain disputes with regard to exchange rate on account of which kay bouvet informed mashkour that it ought to have been paid more amount in indian rupees 4 after execution of second tranche of usd 125 million on 24th july 2013 between republic of sudan and exim bank an agreement was executed between mashkour and overseas on 9th february 2014 for balance amount of usd 124 975 000 for financing the final part of the sugar factory project on 30th october 2014 overseas informed exim bank to transfer partial amount of usd 95 580 000 in favour of kay bouvet from the funds to be received under the loc in relation to sugar project 5 5 it appears that in the meantime there was certain exchange of communications between the ministry of external affairs government of india hereinafter referred to as the goi and the sudan government in pursuance to such exchange of communications on 17th april 2017 the ambassador of sudan to india addressed to the minister of state of external affairs goi and advised to terminate the contract of mashkour with overseas and in turn to appoint kay bouvet as a contractor in response thereto the ministry of external affairs informed the ambassador of sudan that it will be necessary to execute an agreement with kay bouvet in order to enable exim bank to release funds to kay bouvet vide communication dated 25th april 2017 the ambassador of sudan informed mashkour to enter an agreement with kay bouvet as a direct contract for unutilized portion of goi s loc for usd 150 million it was also informed that the advance amount of rs 47 12 10 000 received by kay bouvet from the first tranche of usd 25 million was to be adjusted against supplies to be made to mashkour for completing the project 6 6 on 15th june 2017 mashkour terminated the contract with overseas for failure on its part to perform the duties overseas filed a civil suit being no 785 of 2017 before the high court of bombay seeking specific performance of contract and an order of injunction from appointing kay bouvet as a contractor in the mashkour project notice of motion no 1314 of 2017 was also moved for injunction vide order dated 27th june 2017 prayer for ad interim relief made by overseas came to be rejected by the bombay high court 7 vide communication dated 5th july 2017 mashkour informed kay bouvet about the developments and termination of contract and further informed that the advance payment of rs 47 12 10 000 received by kay bouvet from overseas was to be adjusted against supplies to be made to mashkour for completion of the project it was further informed that overseas will not claim back the said amount from kay bouvet accordingly on the same day an agreement came to be executed between mashkour and kay bouvet the same was 7 informed by the ambassador of sudan to the ministry of external affairs on 11th july 2017 8 a demand notice under section 8 of the ibc was served upon kay bouvet by overseas alleging default under the tripartite agreement and claiming an amount of usd 10 62 million paid by overseas to kay bouvet kay bouvet vide communication dated 6th december 2017 denied the claim of overseas it was specifically pointed out that the amount which was paid to kay bouvet by overseas was received on behalf of mashkour and it was only routed through overseas and the same stands adjusted under new agreement on 27th december 2017 overseas claiming itself to be an operational creditor filed a petition under section 9 of the ibc before nclt mumbai being cp ib no 20 mb 2018 vide order dated 26th july 2018 the nclt dismissed the petition overseas carried the same in an appeal being company appeal at insolvency no 582 of 2018 before the nclat by the impugned order dated 21st december 2018 nclat allowed the 8 appeal as aforesaid being aggrieved thereby the appellant kay bouvet has approached this court 9 shri jayant bhushan learned senior counsel appearing on behalf of the appellant kay bouvet submitted that by no stretch of imagination the claim made by overseas could be considered to be an operational debt and as such overseas cannot be an operational creditor enabling it to invoke the jurisdiction of nclt under section 9 of the ibc shri bhushan further submitted that kay bouvet could not have moved as a financial creditor and as such by stretching the definition of operational creditor though it does not fit in the same has filed the proceedings under section 9 of the ibc the learned senior counsel submitted that no amount is receivable by overseas from kay bouvet in respect of the provisions of goods or services including employment or a debt in respect of the payment of dues and as such it will not fit in the definition of operational debt as provided under sub section 21 of section 5 of the ibc the learned senior counsel submitted 9 that by the same analogy overseas would also not fall under the definition of operational creditor 10 shri bhushan further submitted that as a matter of fact the payment which was made to kay bouvet by overseas was from the amount received by it from mashkour he submitted that the material placed on record would clearly fortify this position the learned senior counsel submitted that in any case perusal of clause 14 1 of the tripartite agreement would clearly show that the amount so paid was paid by mashkour to overseas it is submitted that in any case the material placed on record and specifically the demand notice and reply thereto clearly showed that there was an existence of dispute and as such the nclt had rightly dismissed the petition it is submitted that however the nclat has misconstrued the provisions and allowed the appeal and directed admission of section 9 petition it is submitted that the jurisdiction of the adjudicating authorities under ibc is limited and it can 10 adjudicate only on the limited areas that are delineated in the statute 11 shri c a sundaram learned senior counsel appearing for respondent overseas on the contrary asserts that the amount which was paid to kay bouvet was the amount paid from the funds of overseas and not from mashkour he submitted that perusal of material placed on record would reveal that kay bouvet has admitted of receiving the amount from overseas and once the party admits of any claim the same would come in the definition of operational debt as defined under sub section 21 of section 5 of the ibc and enable the party to whom admission is made to file the proceedings under section 9 of the ibc being an operational creditor the learned senior counsel therefore submitted that nclat rightly considered the provisions and allowed the appeal of overseas and directed admission of section 9 petition he therefore submitted that the present appeal deserves to be dismissed 11 12 though elaborate submissions have been made on behalf of both the parties we are of the considered view that the present appeal can be decided on a short ground without going into the other aspects of the matter it will be relevant to refer to sections 8 and 9 of the ibc 8 insolvency resolution by operational creditor 1 an operational creditor may on the occurrence of a default deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed 2 the corporate debtor shall within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub section 1 bring to the notice of the operational creditor a existence of a dispute if any or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute b the payment of unpaid operational debt i by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor or ii by sending an attested copy of record that the operational creditor has 12 encashed a cheque issued by the corporate debtor explanation for the purposes of this section a demand notice means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred 9 application for initiation of corporate insolvency resolution process by operational creditor 1 after the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub section 1 of section 8 if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub section 2 of section 8 the operational creditor may file an application before the adjudicating authority for initiating a corporate insolvency resolution process 2 the application under sub section 1 shall be filed in such form and manner and accompanied with such fee as may be prescribed 3 the operational creditor shall along with the application furnish a a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor b an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt c a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is 13 no payment of an unpaid operational debt by the corporate debtor if available d a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor if available and e any other proof confirming that there is no payment of an unpaid operational debt by the corporate debtor or such other information as may be prescribed 4 an operational creditor initiating a corporate insolvency resolution process under this section may propose a resolution professional to act as an interim resolution professional 5 the adjudicating authority shall within fourteen days of the receipt of the application under sub section 2 by an order i admit the application and communicate such decision to the operational creditor and the corporate debtor if a the application made under sub section 2 is complete b there is no payment of the unpaid operational debt c the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor d no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility and e there is no disciplinary proceeding pending against any resolution 14 professional proposed under sub section 4 if any ii reject the application and communicate such decision to the operational creditor and the corporate debtor if a the application made under sub section 2 is incomplete b there has been payment of the unpaid operational debt c the creditor has not delivered the invoice or notice for payment to the corporate debtor d notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility or e any disciplinary proceeding is pending against any proposed resolution professional provided that adjudicating authority shall before rejecting an application under sub clause a of clause ii give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating authority 6 the corporate insolvency resolution process shall commence from the date of admission of the application under sub section 5 of this section 15 13 perusal of the aforesaid provisions would reveal that an operational creditor on the occurrence of default is required to deliver a demand notice of unpaid operational debt or a copy of invoice demanding payment of amount involved in the default to the corporate debtor in such form and manner as may be prescribed within 10 days of the receipt of such demand notice or copy of invoice the corporate debtor is required to either bring to the notice of the operational creditor existence of a dispute or to make the payment of unpaid operational debt in the manner as may be prescribed thereafter as per the provisions of section 9 of the ibc after the expiry of the period of 10 days from the date of delivery of notice or invoice demanding payment under sub section 1 of section 8 and if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub section 2 of section 8 of the ibc the operational creditor is entitled to file an application before the adjudicating authority for initiating the corporate insolvency resolution process 16 14 the issue is no more res integra it will be relevant to refer to paragraph 38 of the judgment of this court in the case of mobilox innovations private limited v kirusa software private limited1 38 it is thus clear that so far as an operational creditor is concerned a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form the corporate debtor is then given a period of 10 days from the receipt of the demand notice or copy of the invoice to bring to the notice of the operational creditor the existence of a dispute if any we have also seen the notes on clauses annexed to the insolvency and bankruptcy bill of 2015 in which the existence of a dispute alone is mentioned even otherwise the word and occurring in section 8 2 a must be read as or keeping in mind the legislative intent and the fact that an anomalous situation would arise if it is not read as or if read as and disputes would only stave off the bankruptcy process if they are already pending in a suit or arbitration proceedings and not otherwise this would lead to great hardship in that a dispute may arise a few days before triggering of the insolvency process in which case though a dispute may exist there is no time to approach either an arbitral tribunal or a court further given the fact that long limitation periods are allowed where disputes may arise and do not reach an arbitral tribunal or a court for up to three years 1 2018 1 scc 353 17 such persons would be outside the purview of section 8 2 leading to bankruptcy proceedings commencing against them such an anomaly cannot possibly have been intended by the legislature nor has it so been intended we have also seen that one of the objects of the code qua operational debts is to ensure that the amount of such debts which is usually smaller than that of financial debts does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations it is for this reason that it is enough that a dispute exists between the parties 15 it could thus be seen that this court has held that one of the objects of the ibc qua operational debts is to ensure that the amount of such debts which is usually smaller than that of financial debts does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations it has been held that it is for this reason that it is enough that a dispute exists between the parties 16 it will further be apposite to refer to the following observations of this court in mobilox innovations private 18 limited supra wherein this court has considered the terms existence genuine dispute and genuine claim and various authorities construing the said terms 45 the expression existence has been understood as follows shorter oxford english dictionary gives the following meaning of the word existence a reality as opp to appearance b the fact or state of existing actual possession of being continued being as a living creature life esp under adverse conditions something that exists an entity a being all that exists p 894 oxford english dictionary 46 two extremely instructive judgments one of the australian high court and the other of the chancery division in the uk throw a great deal of light on the expression existence of a dispute contained in section 8 2 a of the code the australian judgment is reported as spencer constructions pty ltd v g m aldridge pty ltd spencer constructions pty ltd v g m 19 aldridge pty ltd 1997 fca 681 aust the australian high court had to construe section 459 h of the corporations law which read as under 1 a that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates b 47 the expression genuine dispute was then held to mean the following finn j was content to adopt the explanation of genuine dispute given by mclelland c j in eq in eyota pty ltd v hanave pty ltd eyota pty ltd v hanave pty ltd 1994 12 acsr 785 aust acsr at p 787 where his honour said in my opinion the expression connotes a plausible contention requiring investigation and raises much the same sort of considerations as the serious question to be tried criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat this 20 does not mean that the court must accept uncritically as giving rise to a genuine dispute every statement in an affidavit however equivocal lacking in precision inconsistent with undisputed contemporary documents or other statements by the same deponent or inherently and probable in itself it may be not having sufficient prima facie plausibility to merit further investigation as to its truth cf eng mee yong v letchumanan eng mee yong v letchumanan 1980 ac 331 1979 3 wlr 373 pc ac at p 341g or a patently feeble legal argument or an assertion of facts unsupported by evidence cf south australia v wall south australia v wall 1980 24 sasr 189 aust sasr at p 194 his honour also referred to the judgment of lindgren j in rohalo pharmaceutical pty ltd rohalo pharmaceutical pty ltd v rp scherer 1994 15 acsr 347 aust where at p 353 his honour said the provisions of sections 459 h 1 and 5 assume that the dispute and offsetting claim have an objective existence the genuineness of which is capable of being assessed the word genuine is included in genuine dispute to sound a note of warning that the propounding of serious disputes and 21 claims is to be expected but must be excluded from consideration there have been numerous decisions of single judges in this court and in state supreme courts which have analysed in different ways the approach a court should take in determining whether there is a genuine dispute for the purposes of section 459 h of the corporations law what is clear is that in considering applications to set aside a statutory demand a court will not determine contested issues of fact or law which have a significant or substantial basis one finds formulations such as at least in most cases it is not expected that the court will embark upon any extended enquiry in order to determine whether there is a genuine dispute between the parties and certainly will not attempt to weigh the merits of that dispute all that the legislation requires is that the court conclude that there is a dispute and that it is a genuine dispute see mibor investments pty ltd v commonwealth bank of australia mibor investments pty ltd v commonwealth bank of australia 1993 11 acsr 362 aust acsr at pp 366 67 followed by ryan j in moyall investments services pty ltd v white moyall investments services pty ltd v white 1993 12 acsr 320 aust acsr at p 324 22 another formulation has been expressed as follows it is clear that what is required in all cases is something between mere assertion and the proof that would be necessary in a court of law something more than mere assertion is required because if that were not so then anyone could merely say it did not owe a debt see john holland construction and engg pty ltd v kilpatrick green pty ltd john holland construction and engg pty ltd v kilpatrick green pty ltd 1994 12 aclc 716 aust aclc at p 718 followed by northrop j in aquatown pty ltd v holder stroud pty ltd aquatown pty ltd v holder stroud pty ltd federal court of australia 25 6 1996 unreported in morris catering australia pty ltd morris catering australia pty ltd in re 1993 11 acsr 601 aust acsr at p 605 thomas j said there is little doubt that div 3 is intended to be a complete code which prescribes a formula that requires the court to assess the position between the parties and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim that is not to say that the court will examine the merits or settle the dispute the specified limits of 23 the court s examination are the ascertainment of whether there is a genuine dispute and whether there is a genuine claim it is often possible to discern the spurious and to identify mere bluster or assertion but beyond a perception of genuineness or the lack of it the court has no function it is not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another the essential task is relatively simple to identify the genuine level of a claim not the likely result of it and to identify the genuine level of an offsetting claim not the likely result of it in scanhill pty ltd v century 21 australasia pty ltd scanhill pty ltd v century 21 australasia pty ltd 1993 12 acsr 341 aust acsr at p 357 beazley j said the test to be applied for the purposes of section 459 h is whether the court is satisfied that there is a serious question to be tried that the applicant has an offsetting claim in chadwick industries south coast pty ltd v condensing vaporisers pty ltd chadwick 24 industries south coast pty ltd v condensing vaporisers pty ltd 1994 13 acsr 37 aust acsr at p 39 lockhart j said what appears clearly enough from all the judgments is that a standard of satisfaction which a court requires is not a particularly high one i am for present purposes content to adopt any of the standards that are referred to in the cases the highest of the thresholds is probably the test enunciated by beazley j though for myself i discern no inconsistency between that test and the statements in the other cases to which i have referred however the application of beazley j s test will vary according to the circumstances of the case certainly the court will not examine the merits of the dispute other than to see if there is in fact a genuine dispute the notion of a genuine dispute in this context suggests to me that the court must be satisfied that there is a dispute that is not plainly vexatious or frivolous it must be satisfied that there is a claim that may have some substance in greenwood manor pty ltd v woodlock greenwood manor pty ltd v woodlock 1994 48 fcr 229 aust northrop j referred to the formulations of thomas j in morris catering australia pty ltd in re morris catering australia pty ltd in re 1993 11 acsr 601 aust aclc at p 922 and 25 hayne j in mibor investments pty ltd v commonwealth bank of australia mibor investments pty ltd v commonwealth bank of australia 1993 11 acsr 362 aust where he noted the dictionary definition of genuine as being in this context not spurious real or true and concluded at p 234 although it is true that the court on an application under sections 459 g and 459 h is not entitled to decide a question as to whether a claim will succeed or not it must be satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt if it can be shown that the argument in support of the existence of a genuine dispute can have no possible basis whatsoever in my view it cannot be said that there is a genuine dispute this does not involve in itself a determination of whether the claim will succeed or not but it does go to the reality of the dispute to show that it is real or true and not merely spurious in our view a genuine dispute requires that i the dispute be bona fide and truly exist in fact ii the grounds for alleging the existence of a dispute are real and not spurious hypothetical illusory or misconceived 26 we consider that the various formulations referred to above can be helpful in determining whether there is a genuine dispute in a particular case so long as the formulation used does not become a substitute for the words of the statute 17 it is thus clear that once the operational creditor has filed an application which is otherwise complete the adjudicating authority has to reject the application under section 9 5 ii d of ibc if a notice has been received by operational creditor or if there is a record of dispute in the information utility what is required is that the notice by the corporate debtor must bring to the notice of operational creditor the existence of a dispute or the fact that a suit or arbitration proceedings relating to a dispute is pending between the parties all that the adjudicating authority is required to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence it is important to separate the grain 27 from the chaff and to reject a spurious defence which is a mere bluster it has been held that however at this stage the court is not required to be satisfied as to whether the defence is likely to succeed or not the court also cannot go into the merits of the dispute except to the extent indicated hereinabove it has been held that so long as a dispute truly exists in fact and is not spurious hypothetical or illusory the adjudicating authority has no other option but to reject the application 18 in the light of the law laid down by this court stated hereinabove we will have to examine the facts of the present case we clarify that though arguments have been advanced at the bar with regard to the questions as to whether the so called claim made by overseas would be considered to be an operational debt and as to whether overseas could be considered to be an operational creditor we do not find it necessary to go into said questions inasmuch as the present appeal can be decided only on a short question as to whether 28 kay bouvet has been in a position to make out the case of existence of dispute or not 19 for considering the rival submissions it will be appropriate to refer to the demand notice invoice dated 23rd november 2017 addressed to kay bouvet by overseas 7 due to termination of the epc contract by mashkour the tripartite sub contract also came to an automatic end by virtue of the clause 15 2 of the particular conditions of the said sub contract 8 on or about 14th july 2017 the corporate debtor filed its affidavit dated 14th july 2017 in the notice of motion l no 1314 of 2017 in suit 1 no 382 of 2017 in reply to the said notice of motion hereinafter referred to as the said reply in the said reply the corporate debtor has categorically stated and admitted that mashkour has now in replacement of the operational creditor appointed the corporate debtor itself as its epc contractor for the said project under and the epc contract dated 5th july 2017 consequently the tri partite contract dated 18th april 2010 between mashkour the corporate debtor and the operational creditor stands vitiated and superseded by the fresh contract executed between mashkour and 29 corporate debtor in view thereof the corporate debtor can no longer perform under the said tri partite contract dated 18th april 2010 between mashkour the corporate debtor and the operational creditor as the same stands superseded by the fresh contract dated 5th july 2017 executed between mashkour and the corporate debtor 9 the operational creditor therefore states that in the light of the corporate debtors admission in the said reply the corporate debtor is liable to refund the said advance amount forthwith to the operatinal creditor the operational creditor further states that the said advance amount became due and payable as and by way of refund to the operational creditor by the corporate debtor on or about 5th july 2017 i e the date on which the corporate debtor was appointed as an epc contractor by mashkour 10 the corporate debtor has therefore defaulted in refunding the said advance amount 20 it can thus be seen that the claim of overseas is that in the reply filed to its notice of motion by kay bouvet it has admitted that mashkour has as a replacement of overseas 30 appointed kay bouvet as the contractor as such the tripartite agreement dated 18th december 2010 stands vitiated and superseded as such kay bouvet cannot perform under the said tripartite agreement according to overseas therefore in view of the admission in the reply kay bouvet is liable to refund the advance amount forthwith 21 it will be relevant to refer to the reply dated 6th december 2017 addressed by kay bouvet to overseas as per the provisions of clause a of sub section 2 of section 8 of the ibc 3 we state that key bouvet expressly denied the claim of 10 62 million of equivalent to rs 47 12 10 000 rupees 47 crores twelve lakhs ten thousand only we state that key bouvet had received advance monies on behalf of mashkour sugar company limited hereinafter mashkour as per the agreement executed between the parties we state that thereafter mashkour has terminated an agreement with you vide their letter dated 17 05 2017 and therefore kay bouvet has monetary liability towards oia 31 4 we state that on 05 07 2017 mashkour has entered into a fresh contract with key bouvet in the said agreement mashkour has considered the earlier advance payment of usd 10 62 million equivalent to rs 47 12 10 000 rupees 47 crores twelve lakhs ten thousand only made to key bouvet from mashkour the execution of the fresh contract in favour of kay bouvet in no manner creates an automatic liability on kay bouvet to refund any amount there is no such legal and contractual monetary liability between the oia and kay bouvet the very perusal of the definition of debt and operational creditors would establish that termination of contract by mashkour with you does not create any debt due from key bouvet towards oia it expressly denied that kay bouvet is an operational creditor towards oia 5 we state that as per the pleadings in the suit l no 382 of 2017 you have sought a relief of release of the amount of usd 10 745 000 under the letter of agreement of 2th march 2014 thereafter there is an existence of dispute of the existence of such amount of debt claimed by you in such event your demand notice is erroneous illegal and bad in law considering provisions of insolvency and bankruptcy code 2016 and more particularly section 5 6 section 9 5 i d and section 9 5 ii d 32 emphasis supplied 22 it can thus be seen that kay bouvet has clearly stated that the said amount of rs 47 12 10 000 was received as advance money on behalf of mashkour it has been specifically stated that in the agreement entered into between mashkour and kay bouvet on 5th july 2017 the said advance payment of rs 47 12 10 000 has been duly considered it is stated that the execution of the fresh contract in favour of kay bouvet in no manner creates an automatic liability on kay bouvet as such kay bouvet has pressed into service the existence of dispute for opposing the demand made by overseas 23 we will have to examine as to whether the claim of kay bouvet with regard to the existence of dispute can be considered to be the one which is spurious illusory or not supported by any evidence it will be relevant to refer to clause 14 1 of the tripartite agreement dated 18th december 2010 between mashkour overseas and kay bouvet 33 1 10 of the sub contract price as interest free advance payment by way of telegraphic transfer directly to the bank account of the sub contractor against submission of invoice and advance payment bank guarantee for 10 of the sub contract price from any indian public sector bank acceptable to mashkour upon receipt of amounts from exim bank the advance payment bank guarantee shall be as per format attached herewith uniform rules for demand guarantees publication no 758 international chamber of commerce and its value may be reduced in proportion to the value of amounts invoiced as evidenced by shipping documents and receipt of payment from exim bank 24 it will further be relevant to refer to the e mail dated 29th march 2011 from overseas to mashkour 1 mashkour sugar company will release payment of two invoices to oia against factory dde for usd 10 5 million usd 9 00 m usd 1 50m 2 oia will release payment of usd 10 62 million to kay bouvet on submission of advance bank guarantee and performance bank guarantee to mashkour and its confirmation and acceptance 34 by mashkour and discharge of oia bank guarantee of usd 7 5 millions 3 mashkour will release second payment of two invoices of usd 4 375 million usd 3 50m usd 0 875m civil work to oia 4 oia will release advance payment of usd 1 113 million to civil contractor after signing of contract between oia and civil contractor and on confirmation from mashkour regarding acceptance or abg pbg of the civil contractor as per contract you are requested to please accept this proposal and send authorization letters to exim 25 a perusal thereof would clearly reveal that mashkour was to release payment of two invoices of overseas for usd 10 5 million usd 9 00 million usd 1 50 million it will further reveal that overseas was to release payment of usd 10 62 million to kay bouvet on submission of advance bank 35 guarantee and performance bank guarantee to mashkour and its confirmation and acceptance by mashkour 26 it will further be relevant to refer to the communication addressed by exim bank to overseas dated 21st april 2011 goi supported exim bank s line of credit for usd 25 million to government of sudan approval no exim goiloc 82 1 disbursement advice 3 we advise that an amount of rs 46 58 75 853 has been remitted to india overseas bank nehru place new delhi through rtgs code ioba0000543 to the credit of account of overseas infrastructure alliance india private limited the disbursement is made against the contract between mashkour sugar company sudan and overseas infrastructure alliance india private limited details of the disbursement are as under amt in usd 36 disbursement invoice value eligible value net remitted value no cif 100 100 date 2 15 000 000 00 10 500 000 00 10 476 781 85 april 18 2011 2 the breakup of the disbursement made as follows usd eligible value 10 500 000 00 465 911 250 00 less 23 218 15 10 30 247 00 negotiation charges service tax currency conversion 110 00 chg and service tax net remittance 10 476 781 85 46 48 80 893 00 3 please confirm receipt of the credit emphasis supplied 37 27 it will further be relevant to refer to the communication addressed by overseas of the same date to mashkour we have been paid the advance amount to 10 05 million usd in inr by exim bank because of stringent sanction entrancement by the united state office of foreign asset control ofac as per the letter enclosed herewith the amount has been delivered to us rs 44 37 per disbursement advice of the exim bank attached herewith further oia will release payment of usd 10 62 million to kay bouvet on submission of advance bank guarantee and performance bank guarantee to mashkour sugar company and its confirmation and acceptance by mashkour sugar company and discharge of oia bank guarantee of usd 7 5 million as per mail dated 29 03 2011 of mr ghodgankar emphasis supplied 38 28 the communication dated 28th july 2011 addressed by mashkour to overseas would further clarify the position which reads thus we are please to inform you that nominated sub contractor messres kay bouvet engineering private limited has submitted advance payment bank guarantee as well as performance bank guarantee to us as per the sub contract agreement and we are satisfied with the same in the light of the above we request your good self to release the 10 of the sub contract value as per letter dated 21 04 2011 addressed to mashkour the payment to be released as under name of the beneficiary m s kay bouvet engineering private ltd 39 name of bank m s bank of maharashtra satara city branch ifsc code mah80000134 account no 60018168457 mode of payment rtgs amount of rs 47 12 10 000 rupees forty seven crores twelve lakhs ten thousand only as soon as we get confirmation from your side regarding release of payment we shall release your bank guarantee usd 7 5 million as i discussed today with mr suresh i will be in india with original discharge bank guarantee in the beginning of last week emphasis supplied 29 as already discussed hereinabove that kay bouvet had certain grievances with regard to payment of less money on account of exchange rate the communication dated 21st september 2011 addressed by kay bouvet to mashkour would clarify the said position which reads thus we have been paid rs 47 12 10 000 by m s overseas infrastructure alliance india ltd on 30th august 2011 equivalent to usd 10 62 million converted 1 usd rs 44 37 whereas 40 on that day the conversion rate as per the attached list was 1 usd rs 46 26 so the amount would have been rs 49 12 08 012 so they have underpaid a sum of rs 1 99 98 012 so you are requested to advise oia to release amount of rs 1 99 98 012 to us without any delay 30 the last nail in the case of the overseas would be in the nature of communication addressed by the ambassador of sudan to mashkour dated 25th april 2017 which reads thus with reference to the earlier correspondence we have received the do no 1425 secy er 2017 dated 18th april 2017 from mr amar sinha secretary economic relations ministry of external affairs government of india new delhi india expediting the termination of the agreement with overseas infrastructure alliance india private limited oia and that an agreement be signed with kay bouvet engineering ltd kbel as a direct contractor for the unutilized portion of the goi s line of credit for us dollars 150 000 000 for the mashkour sugar project it is on the record that a sum of rs 47 12 10 000 us 10 62 million was paid by oia to kay bouvet engineering ltd kbel on behalf of mashkour sugar company from the funds released to oia by exim bank from the 1st disbursed tranche of us 25 million 41 kindly make a note while signing the revised contract with kbel that the above mentioned amount of us dollars 10 62 shall be adjusted by kay bouvet engineering ltd against the supplies to be made to mashkour sugar company ltd for the purpose of completing the project naturally it should be borne in mind that the termination of oia contract with mashkour should not absolve them of any liability for the balance of the loc 1st tranche of 25 million disbursed to them other than the us dollars 10 62 already paid to kbel and which will be adjusted when a contract is signed with kbel as a main contractor emphasis supplied 31 it is thus abundantly clear that the case of kay bouvet that the amount of rs 47 12 10 000 which was paid to it by overseas was paid on behalf of mashkour from the funds released to overseas by exim bank on behalf of mashkour cannot be said to be a dispute which is spurious illusory or not supported by the evidence placed on record the material placed on record amply clarifies that the initial payment which was made to kay bouvet as a sub contractor by overseas who 42 was a contractor was made on behalf of mashkour and from the funds received by overseas from mashkour it will also be clear that when a new contract was entered into between mashkour and kay bouvet directly mashkour had directed the said amount of rs 47 12 10 000 to be adjusted against the supplies to be made to mashkour sugar company ltd for the purpose of completing the project on the contrary the documents clarify that the termination of the contract with overseas would not absolve overseas of any liability for the balance of the loc 1st tranche of 25 million disbursed to them other than usd 10 62 paid to kay bouvet 32 in these circumstances we find that nclt had rightly rejected the application of overseas after finding that there existed a dispute between kay bouvet and overseas and as such an order under section 9 of the ibc would not have been passed we find that nclat has patently misinterpreted the factual as well as legal position and erred in reversing the order of nclt and directing admission of section 9 petition 43 33 resultantly this appeal is allowed and the impugned order dated 21st december 2018 passed by nclat is quashed and set aside the order passed by nclt dated 26th july 2018 is maintained 34 in view of the above all the pending ias shall stand disposed of j r f nariman j b r gavai new delhi august 10 2021 44 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 1137 of 2019 kay bouvet engineering ltd appellant s versus overseas infrastructure alliance india private limited respondent s j u d g m e n t b r gavai j 1 this appeal challenges the judgment and order passed by the national company law appellate tribunal hereinafter referred to as the nclat dated 21st december 2018 thereby allowing the appeal filed by respondent herein the respondent herein had preferred an appeal being company appeal at insolvency no 582 of 2018 challenging the order passed by the national company law tribunal hereinafter referred to as 1 the nclt dated 26th july 2018 thereby rejecting the petition being c p ib 20 mb 2018 filed by the respondent herein under section 9 of the insolvency and bankruptcy code hereinafter referred to as the ibc by the impugned order dated 21st december 2018 the nclat while allowing the appeal has remitted back the matter to the nclt with a direction to admit the petition filed by the respondent herein under section 9 of the ibc after giving limited notice to the appellant herein so as to enable it to settle the claim 2 the facts in brief giving rise to the present appeal are as under the government of india extended dollar line of credit hereinafter referred to as the loc of usd 150 million to the republic of sudan through exim bank of india hereinafter referred to as the exim bank for carrying out mashkour sugar project in sudan this was in two tranches of usd 25 million and usd 125 million on 26th january 2009 the first tranche of usd 25 million was executed between republic of 2 sudan and exim bank for financing the mashkour sugar project on 11th october 2009 mashkour sugar company limited sudan hereinafter referred to as the mashkour entered into an agreement with the respondent overseas infrastructure alliance india private limited hereinafter referred to as the overseas for usd 149 975 000 to be financed by exim bank as per the said agreement mashkour was to nominate a sub contractor a subsequent agreement was entered into on 14th april 2010 between mashkour and overseas for payment of usd 25 million to overseas towards design and engineering package and plant civil package including site mobilization in response to the invitation by mashkour the appellant kay bouvet engineering limited hereinafter referred to as the kay bouvet submitted its bid as a sub contractor for supply erection and completion of the sugar plant at sudan which was accepted by mashkour on 18th december 2010 a memorandum of understanding hereinafter referred to as the mou was entered into between mashkour overseas and kay bouvet at khartoum sudan the 3 said mou provided that the contract has to be governed by the laws of sudan the same mou also defined roles and responsibilities of each of the parties on the same date a tripartite agreement was also executed between all the three parties vide which kay bouvet was appointed as a sub contractor for executing the whole work of designing engineering supply installation erection testing and completion of factory plant for mashkour sugar company for an amount of usd 106 200 million 3 on 29th march 2011 overseas vide an e mail sent to mashkour confirmed that under the tripartite agreement mashkour was to release payment of first tranche of loc to overseas and the overseas in turn was to release payment of usd 10 62 million to kay bouvet on submission of advance bank guarantee and performance bank guarantee by kay bouvet to mashkour vide letter dated 21st april 2011 exim bank informed overseas that an amount of rs 46 58 crore had been remitted to its bank account overseas vide letter of the 4 same date confirmed to mashkour about receipt of funds and further informed that it will release usd 10 62 million to kay bouvet on submission of requisite bank guarantees on 28th july 2011 kay bouvet informed overseas that it had submitted necessary guarantees to mashkour on the advice of mashkour overseas paid an amount of rs 47 12 10 000 to kay bouvet there were certain disputes with regard to exchange rate on account of which kay bouvet informed mashkour that it ought to have been paid more amount in indian rupees 4 after execution of second tranche of usd 125 million on 24th july 2013 between republic of sudan and exim bank an agreement was executed between mashkour and overseas on 9th february 2014 for balance amount of usd 124 975 000 for financing the final part of the sugar factory project on 30th october 2014 overseas informed exim bank to transfer partial amount of usd 95 580 000 in favour of kay bouvet from the funds to be received under the loc in relation to sugar project 5 5 it appears that in the meantime there was certain exchange of communications between the ministry of external affairs government of india hereinafter referred to as the goi and the sudan government in pursuance to such exchange of communications on 17th april 2017 the ambassador of sudan to india addressed to the minister of state of external affairs goi and advised to terminate the contract of mashkour with overseas and in turn to appoint kay bouvet as a contractor in response thereto the ministry of external affairs informed the ambassador of sudan that it will be necessary to execute an agreement with kay bouvet in order to enable exim bank to release funds to kay bouvet vide communication dated 25th april 2017 the ambassador of sudan informed mashkour to enter an agreement with kay bouvet as a direct contract for unutilized portion of goi s loc for usd 150 million it was also informed that the advance amount of rs 47 12 10 000 received by kay bouvet from the first tranche of usd 25 million was to be adjusted against supplies to be made to mashkour for completing the project 6 6 on 15th june 2017 mashkour terminated the contract with overseas for failure on its part to perform the duties overseas filed a civil suit being no 785 of 2017 before the high court of bombay seeking specific performance of contract and an order of injunction from appointing kay bouvet as a contractor in the mashkour project notice of motion no 1314 of 2017 was also moved for injunction vide order dated 27th june 2017 prayer for ad interim relief made by overseas came to be rejected by the bombay high court 7 vide communication dated 5th july 2017 mashkour informed kay bouvet about the developments and termination of contract and further informed that the advance payment of rs 47 12 10 000 received by kay bouvet from overseas was to be adjusted against supplies to be made to mashkour for completion of the project it was further informed that overseas will not claim back the said amount from kay bouvet accordingly on the same day an agreement came to be executed between mashkour and kay bouvet the same was 7 informed by the ambassador of sudan to the ministry of external affairs on 11th july 2017 8 a demand notice under section 8 of the ibc was served upon kay bouvet by overseas alleging default under the tripartite agreement and claiming an amount of usd 10 62 million paid by overseas to kay bouvet kay bouvet vide communication dated 6th december 2017 denied the claim of overseas it was specifically pointed out that the amount which was paid to kay bouvet by overseas was received on behalf of mashkour and it was only routed through overseas and the same stands adjusted under new agreement on 27th december 2017 overseas claiming itself to be an operational creditor filed a petition under section 9 of the ibc before nclt mumbai being cp ib no 20 mb 2018 vide order dated 26th july 2018 the nclt dismissed the petition overseas carried the same in an appeal being company appeal at insolvency no 582 of 2018 before the nclat by the impugned order dated 21st december 2018 nclat allowed the 8 appeal as aforesaid being aggrieved thereby the appellant kay bouvet has approached this court 9 shri jayant bhushan learned senior counsel appearing on behalf of the appellant kay bouvet submitted that by no stretch of imagination the claim made by overseas could be considered to be an operational debt and as such overseas cannot be an operational creditor enabling it to invoke the jurisdiction of nclt under section 9 of the ibc shri bhushan further submitted that kay bouvet could not have moved as a financial creditor and as such by stretching the definition of operational creditor though it does not fit in the same has filed the proceedings under section 9 of the ibc the learned senior counsel submitted that no amount is receivable by overseas from kay bouvet in respect of the provisions of goods or services including employment or a debt in respect of the payment of dues and as such it will not fit in the definition of operational debt as provided under sub section 21 of section 5 of the ibc the learned senior counsel submitted 9 that by the same analogy overseas would also not fall under the definition of operational creditor 10 shri bhushan further submitted that as a matter of fact the payment which was made to kay bouvet by overseas was from the amount received by it from mashkour he submitted that the material placed on record would clearly fortify this position the learned senior counsel submitted that in any case perusal of clause 14 1 of the tripartite agreement would clearly show that the amount so paid was paid by mashkour to overseas it is submitted that in any case the material placed on record and specifically the demand notice and reply thereto clearly showed that there was an existence of dispute and as such the nclt had rightly dismissed the petition it is submitted that however the nclat has misconstrued the provisions and allowed the appeal and directed admission of section 9 petition it is submitted that the jurisdiction of the adjudicating authorities under ibc is limited and it can 10 adjudicate only on the limited areas that are delineated in the statute 11 shri c a sundaram learned senior counsel appearing for respondent overseas on the contrary asserts that the amount which was paid to kay bouvet was the amount paid from the funds of overseas and not from mashkour he submitted that perusal of material placed on record would reveal that kay bouvet has admitted of receiving the amount from overseas and once the party admits of any claim the same would come in the definition of operational debt as defined under sub section 21 of section 5 of the ibc and enable the party to whom admission is made to file the proceedings under section 9 of the ibc being an operational creditor the learned senior counsel therefore submitted that nclat rightly considered the provisions and allowed the appeal of overseas and directed admission of section 9 petition he therefore submitted that the present appeal deserves to be dismissed 11 12 though elaborate submissions have been made on behalf of both the parties we are of the considered view that the present appeal can be decided on a short ground without going into the other aspects of the matter it will be relevant to refer to sections 8 and 9 of the ibc 8 insolvency resolution by operational creditor 1 an operational creditor may on the occurrence of a default deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed 2 the corporate debtor shall within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub section 1 bring to the notice of the operational creditor a existence of a dispute if any or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute b the payment of unpaid operational debt i by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor or ii by sending an attested copy of record that the operational creditor has 12 encashed a cheque issued by the corporate debtor explanation for the purposes of this section a demand notice means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred 9 application for initiation of corporate insolvency resolution process by operational creditor 1 after the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub section 1 of section 8 if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub section 2 of section 8 the operational creditor may file an application before the adjudicating authority for initiating a corporate insolvency resolution process 2 the application under sub section 1 shall be filed in such form and manner and accompanied with such fee as may be prescribed 3 the operational creditor shall along with the application furnish a a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor b an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt c a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is 13 no payment of an unpaid operational debt by the corporate debtor if available d a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor if available and e any other proof confirming that there is no payment of an unpaid operational debt by the corporate debtor or such other information as may be prescribed 4 an operational creditor initiating a corporate insolvency resolution process under this section may propose a resolution professional to act as an interim resolution professional 5 the adjudicating authority shall within fourteen days of the receipt of the application under sub section 2 by an order i admit the application and communicate such decision to the operational creditor and the corporate debtor if a the application made under sub section 2 is complete b there is no payment of the unpaid operational debt c the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor d no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility and e there is no disciplinary proceeding pending against any resolution 14 professional proposed under sub section 4 if any ii reject the application and communicate such decision to the operational creditor and the corporate debtor if a the application made under sub section 2 is incomplete b there has been payment of the unpaid operational debt c the creditor has not delivered the invoice or notice for payment to the corporate debtor d notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility or e any disciplinary proceeding is pending against any proposed resolution professional provided that adjudicating authority shall before rejecting an application under sub clause a of clause ii give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating authority 6 the corporate insolvency resolution process shall commence from the date of admission of the application under sub section 5 of this section 15 13 perusal of the aforesaid provisions would reveal that an operational creditor on the occurrence of default is required to deliver a demand notice of unpaid operational debt or a copy of invoice demanding payment of amount involved in the default to the corporate debtor in such form and manner as may be prescribed within 10 days of the receipt of such demand notice or copy of invoice the corporate debtor is required to either bring to the notice of the operational creditor existence of a dispute or to make the payment of unpaid operational debt in the manner as may be prescribed thereafter as per the provisions of section 9 of the ibc after the expiry of the period of 10 days from the date of delivery of notice or invoice demanding payment under sub section 1 of section 8 and if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub section 2 of section 8 of the ibc the operational creditor is entitled to file an application before the adjudicating authority for initiating the corporate insolvency resolution process 16 14 the issue is no more res integra it will be relevant to refer to paragraph 38 of the judgment of this court in the case of mobilox innovations private limited v kirusa software private limited1 38 it is thus clear that so far as an operational creditor is concerned a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form the corporate debtor is then given a period of 10 days from the receipt of the demand notice or copy of the invoice to bring to the notice of the operational creditor the existence of a dispute if any we have also seen the notes on clauses annexed to the insolvency and bankruptcy bill of 2015 in which the existence of a dispute alone is mentioned even otherwise the word and occurring in section 8 2 a must be read as or keeping in mind the legislative intent and the fact that an anomalous situation would arise if it is not read as or if read as and disputes would only stave off the bankruptcy process if they are already pending in a suit or arbitration proceedings and not otherwise this would lead to great hardship in that a dispute may arise a few days before triggering of the insolvency process in which case though a dispute may exist there is no time to approach either an arbitral tribunal or a court further given the fact that long limitation periods are allowed where disputes may arise and do not reach an arbitral tribunal or a court for up to three years 1 2018 1 scc 353 17 such persons would be outside the purview of section 8 2 leading to bankruptcy proceedings commencing against them such an anomaly cannot possibly have been intended by the legislature nor has it so been intended we have also seen that one of the objects of the code qua operational debts is to ensure that the amount of such debts which is usually smaller than that of financial debts does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations it is for this reason that it is enough that a dispute exists between the parties 15 it could thus be seen that this court has held that one of the objects of the ibc qua operational debts is to ensure that the amount of such debts which is usually smaller than that of financial debts does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations it has been held that it is for this reason that it is enough that a dispute exists between the parties 16 it will further be apposite to refer to the following observations of this court in mobilox innovations private 18 limited supra wherein this court has considered the terms existence genuine dispute and genuine claim and various authorities construing the said terms 45 the expression existence has been understood as follows shorter oxford english dictionary gives the following meaning of the word existence a reality as opp to appearance b the fact or state of existing actual possession of being continued being as a living creature life esp under adverse conditions something that exists an entity a being all that exists p 894 oxford english dictionary 46 two extremely instructive judgments one of the australian high court and the other of the chancery division in the uk throw a great deal of light on the expression existence of a dispute contained in section 8 2 a of the code the australian judgment is reported as spencer constructions pty ltd v g m aldridge pty ltd spencer constructions pty ltd v g m 19 aldridge pty ltd 1997 fca 681 aust the australian high court had to construe section 459 h of the corporations law which read as under 1 a that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates b 47 the expression genuine dispute was then held to mean the following finn j was content to adopt the explanation of genuine dispute given by mclelland c j in eq in eyota pty ltd v hanave pty ltd eyota pty ltd v hanave pty ltd 1994 12 acsr 785 aust acsr at p 787 where his honour said in my opinion the expression connotes a plausible contention requiring investigation and raises much the same sort of considerations as the serious question to be tried criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat this 20 does not mean that the court must accept uncritically as giving rise to a genuine dispute every statement in an affidavit however equivocal lacking in precision inconsistent with undisputed contemporary documents or other statements by the same deponent or inherently and probable in itself it may be not having sufficient prima facie plausibility to merit further investigation as to its truth cf eng mee yong v letchumanan eng mee yong v letchumanan 1980 ac 331 1979 3 wlr 373 pc ac at p 341g or a patently feeble legal argument or an assertion of facts unsupported by evidence cf south australia v wall south australia v wall 1980 24 sasr 189 aust sasr at p 194 his honour also referred to the judgment of lindgren j in rohalo pharmaceutical pty ltd rohalo pharmaceutical pty ltd v rp scherer 1994 15 acsr 347 aust where at p 353 his honour said the provisions of sections 459 h 1 and 5 assume that the dispute and offsetting claim have an objective existence the genuineness of which is capable of being assessed the word genuine is included in genuine dispute to sound a note of warning that the propounding of serious disputes and 21 claims is to be expected but must be excluded from consideration there have been numerous decisions of single judges in this court and in state supreme courts which have analysed in different ways the approach a court should take in determining whether there is a genuine dispute for the purposes of section 459 h of the corporations law what is clear is that in considering applications to set aside a statutory demand a court will not determine contested issues of fact or law which have a significant or substantial basis one finds formulations such as at least in most cases it is not expected that the court will embark upon any extended enquiry in order to determine whether there is a genuine dispute between the parties and certainly will not attempt to weigh the merits of that dispute all that the legislation requires is that the court conclude that there is a dispute and that it is a genuine dispute see mibor investments pty ltd v commonwealth bank of australia mibor investments pty ltd v commonwealth bank of australia 1993 11 acsr 362 aust acsr at pp 366 67 followed by ryan j in moyall investments services pty ltd v white moyall investments services pty ltd v white 1993 12 acsr 320 aust acsr at p 324 22 another formulation has been expressed as follows it is clear that what is required in all cases is something between mere assertion and the proof that would be necessary in a court of law something more than mere assertion is required because if that were not so then anyone could merely say it did not owe a debt see john holland construction and engg pty ltd v kilpatrick green pty ltd john holland construction and engg pty ltd v kilpatrick green pty ltd 1994 12 aclc 716 aust aclc at p 718 followed by northrop j in aquatown pty ltd v holder stroud pty ltd aquatown pty ltd v holder stroud pty ltd federal court of australia 25 6 1996 unreported in morris catering australia pty ltd morris catering australia pty ltd in re 1993 11 acsr 601 aust acsr at p 605 thomas j said there is little doubt that div 3 is intended to be a complete code which prescribes a formula that requires the court to assess the position between the parties and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim that is not to say that the court will examine the merits or settle the dispute the specified limits of 23 the court s examination are the ascertainment of whether there is a genuine dispute and whether there is a genuine claim it is often possible to discern the spurious and to identify mere bluster or assertion but beyond a perception of genuineness or the lack of it the court has no function it is not helpful to perceive that one party is more likely than the other to succeed or that the eventual state of the account between the parties is more likely to be one result than another the essential task is relatively simple to identify the genuine level of a claim not the likely result of it and to identify the genuine level of an offsetting claim not the likely result of it in scanhill pty ltd v century 21 australasia pty ltd scanhill pty ltd v century 21 australasia pty ltd 1993 12 acsr 341 aust acsr at p 357 beazley j said the test to be applied for the purposes of section 459 h is whether the court is satisfied that there is a serious question to be tried that the applicant has an offsetting claim in chadwick industries south coast pty ltd v condensing vaporisers pty ltd chadwick 24 industries south coast pty ltd v condensing vaporisers pty ltd 1994 13 acsr 37 aust acsr at p 39 lockhart j said what appears clearly enough from all the judgments is that a standard of satisfaction which a court requires is not a particularly high one i am for present purposes content to adopt any of the standards that are referred to in the cases the highest of the thresholds is probably the test enunciated by beazley j though for myself i discern no inconsistency between that test and the statements in the other cases to which i have referred however the application of beazley j s test will vary according to the circumstances of the case certainly the court will not examine the merits of the dispute other than to see if there is in fact a genuine dispute the notion of a genuine dispute in this context suggests to me that the court must be satisfied that there is a dispute that is not plainly vexatious or frivolous it must be satisfied that there is a claim that may have some substance in greenwood manor pty ltd v woodlock greenwood manor pty ltd v woodlock 1994 48 fcr 229 aust northrop j referred to the formulations of thomas j in morris catering australia pty ltd in re morris catering australia pty ltd in re 1993 11 acsr 601 aust aclc at p 922 and 25 hayne j in mibor investments pty ltd v commonwealth bank of australia mibor investments pty ltd v commonwealth bank of australia 1993 11 acsr 362 aust where he noted the dictionary definition of genuine as being in this context not spurious real or true and concluded at p 234 although it is true that the court on an application under sections 459 g and 459 h is not entitled to decide a question as to whether a claim will succeed or not it must be satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt if it can be shown that the argument in support of the existence of a genuine dispute can have no possible basis whatsoever in my view it cannot be said that there is a genuine dispute this does not involve in itself a determination of whether the claim will succeed or not but it does go to the reality of the dispute to show that it is real or true and not merely spurious in our view a genuine dispute requires that i the dispute be bona fide and truly exist in fact ii the grounds for alleging the existence of a dispute are real and not spurious hypothetical illusory or misconceived 26 we consider that the various formulations referred to above can be helpful in determining whether there is a genuine dispute in a particular case so long as the formulation used does not become a substitute for the words of the statute 17 it is thus clear that once the operational creditor has filed an application which is otherwise complete the adjudicating authority has to reject the application under section 9 5 ii d of ibc if a notice has been received by operational creditor or if there is a record of dispute in the information utility what is required is that the notice by the corporate debtor must bring to the notice of operational creditor the existence of a dispute or the fact that a suit or arbitration proceedings relating to a dispute is pending between the parties all that the adjudicating authority is required to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence it is important to separate the grain 27 from the chaff and to reject a spurious defence which is a mere bluster it has been held that however at this stage the court is not required to be satisfied as to whether the defence is likely to succeed or not the court also cannot go into the merits of the dispute except to the extent indicated hereinabove it has been held that so long as a dispute truly exists in fact and is not spurious hypothetical or illusory the adjudicating authority has no other option but to reject the application 18 in the light of the law laid down by this court stated hereinabove we will have to examine the facts of the present case we clarify that though arguments have been advanced at the bar with regard to the questions as to whether the so called claim made by overseas would be considered to be an operational debt and as to whether overseas could be considered to be an operational creditor we do not find it necessary to go into said questions inasmuch as the present appeal can be decided only on a short question as to whether 28 kay bouvet has been in a position to make out the case of existence of dispute or not 19 for considering the rival submissions it will be appropriate to refer to the demand notice invoice dated 23rd november 2017 addressed to kay bouvet by overseas 7 due to termination of the epc contract by mashkour the tripartite sub contract also came to an automatic end by virtue of the clause 15 2 of the particular conditions of the said sub contract 8 on or about 14th july 2017 the corporate debtor filed its affidavit dated 14th july 2017 in the notice of motion l no 1314 of 2017 in suit 1 no 382 of 2017 in reply to the said notice of motion hereinafter referred to as the said reply in the said reply the corporate debtor has categorically stated and admitted that mashkour has now in replacement of the operational creditor appointed the corporate debtor itself as its epc contractor for the said project under and the epc contract dated 5th july 2017 consequently the tri partite contract dated 18th april 2010 between mashkour the corporate debtor and the operational creditor stands vitiated and superseded by the fresh contract executed between mashkour and 29 corporate debtor in view thereof the corporate debtor can no longer perform under the said tri partite contract dated 18th april 2010 between mashkour the corporate debtor and the operational creditor as the same stands superseded by the fresh contract dated 5th july 2017 executed between mashkour and the corporate debtor 9 the operational creditor therefore states that in the light of the corporate debtors admission in the said reply the corporate debtor is liable to refund the said advance amount forthwith to the operatinal creditor the operational creditor further states that the said advance amount became due and payable as and by way of refund to the operational creditor by the corporate debtor on or about 5th july 2017 i e the date on which the corporate debtor was appointed as an epc contractor by mashkour 10 the corporate debtor has therefore defaulted in refunding the said advance amount 20 it can thus be seen that the claim of overseas is that in the reply filed to its notice of motion by kay bouvet it has admitted that mashkour has as a replacement of overseas 30 appointed kay bouvet as the contractor as such the tripartite agreement dated 18th december 2010 stands vitiated and superseded as such kay bouvet cannot perform under the said tripartite agreement according to overseas therefore in view of the admission in the reply kay bouvet is liable to refund the advance amount forthwith 21 it will be relevant to refer to the reply dated 6th december 2017 addressed by kay bouvet to overseas as per the provisions of clause a of sub section 2 of section 8 of the ibc 3 we state that key bouvet expressly denied the claim of 10 62 million of equivalent to rs 47 12 10 000 rupees 47 crores twelve lakhs ten thousand only we state that key bouvet had received advance monies on behalf of mashkour sugar company limited hereinafter mashkour as per the agreement executed between the parties we state that thereafter mashkour has terminated an agreement with you vide their letter dated 17 05 2017 and therefore kay bouvet has monetary liability towards oia 31 4 we state that on 05 07 2017 mashkour has entered into a fresh contract with key bouvet in the said agreement mashkour has considered the earlier advance payment of usd 10 62 million equivalent to rs 47 12 10 000 rupees 47 crores twelve lakhs ten thousand only made to key bouvet from mashkour the execution of the fresh contract in favour of kay bouvet in no manner creates an automatic liability on kay bouvet to refund any amount there is no such legal and contractual monetary liability between the oia and kay bouvet the very perusal of the definition of debt and operational creditors would establish that termination of contract by mashkour with you does not create any debt due from key bouvet towards oia it expressly denied that kay bouvet is an operational creditor towards oia 5 we state that as per the pleadings in the suit l no 382 of 2017 you have sought a relief of release of the amount of usd 10 745 000 under the letter of agreement of 2th march 2014 thereafter there is an existence of dispute of the existence of such amount of debt claimed by you in such event your demand notice is erroneous illegal and bad in law considering provisions of insolvency and bankruptcy code 2016 and more particularly section 5 6 section 9 5 i d and section 9 5 ii d 32 emphasis supplied 22 it can thus be seen that kay bouvet has clearly stated that the said amount of rs 47 12 10 000 was received as advance money on behalf of mashkour it has been specifically stated that in the agreement entered into between mashkour and kay bouvet on 5th july 2017 the said advance payment of rs 47 12 10 000 has been duly considered it is stated that the execution of the fresh contract in favour of kay bouvet in no manner creates an automatic liability on kay bouvet as such kay bouvet has pressed into service the existence of dispute for opposing the demand made by overseas 23 we will have to examine as to whether the claim of kay bouvet with regard to the existence of dispute can be considered to be the one which is spurious illusory or not supported by any evidence it will be relevant to refer to clause 14 1 of the tripartite agreement dated 18th december 2010 between mashkour overseas and kay bouvet 33 1 10 of the sub contract price as interest free advance payment by way of telegraphic transfer directly to the bank account of the sub contractor against submission of invoice and advance payment bank guarantee for 10 of the sub contract price from any indian public sector bank acceptable to mashkour upon receipt of amounts from exim bank the advance payment bank guarantee shall be as per format attached herewith uniform rules for demand guarantees publication no 758 international chamber of commerce and its value may be reduced in proportion to the value of amounts invoiced as evidenced by shipping documents and receipt of payment from exim bank 24 it will further be relevant to refer to the e mail dated 29th march 2011 from overseas to mashkour 1 mashkour sugar company will release payment of two invoices to oia against factory dde for usd 10 5 million usd 9 00 m usd 1 50m 2 oia will release payment of usd 10 62 million to kay bouvet on submission of advance bank guarantee and performance bank guarantee to mashkour and its confirmation and acceptance 34 by mashkour and discharge of oia bank guarantee of usd 7 5 millions 3 mashkour will release second payment of two invoices of usd 4 375 million usd 3 50m usd 0 875m civil work to oia 4 oia will release advance payment of usd 1 113 million to civil contractor after signing of contract between oia and civil contractor and on confirmation from mashkour regarding acceptance or abg pbg of the civil contractor as per contract you are requested to please accept this proposal and send authorization letters to exim 25 a perusal thereof would clearly reveal that mashkour was to release payment of two invoices of overseas for usd 10 5 million usd 9 00 million usd 1 50 million it will further reveal that overseas was to release payment of usd 10 62 million to kay bouvet on submission of advance bank 35 guarantee and performance bank guarantee to mashkour and its confirmation and acceptance by mashkour 26 it will further be relevant to refer to the communication addressed by exim bank to overseas dated 21st april 2011 goi supported exim bank s line of credit for usd 25 million to government of sudan approval no exim goiloc 82 1 disbursement advice 3 we advise that an amount of rs 46 58 75 853 has been remitted to india overseas bank nehru place new delhi through rtgs code ioba0000543 to the credit of account of overseas infrastructure alliance india private limited the disbursement is made against the contract between mashkour sugar company sudan and overseas infrastructure alliance india private limited details of the disbursement are as under amt in usd 36 disbursement invoice value eligible value net remitted value no cif 100 100 date 2 15 000 000 00 10 500 000 00 10 476 781 85 april 18 2011 2 the breakup of the disbursement made as follows usd eligible value 10 500 000 00 465 911 250 00 less 23 218 15 10 30 247 00 negotiation charges service tax currency conversion 110 00 chg and service tax net remittance 10 476 781 85 46 48 80 893 00 3 please confirm receipt of the credit emphasis supplied 37 27 it will further be relevant to refer to the communication addressed by overseas of the same date to mashkour we have been paid the advance amount to 10 05 million usd in inr by exim bank because of stringent sanction entrancement by the united state office of foreign asset control ofac as per the letter enclosed herewith the amount has been delivered to us rs 44 37 per disbursement advice of the exim bank attached herewith further oia will release payment of usd 10 62 million to kay bouvet on submission of advance bank guarantee and performance bank guarantee to mashkour sugar company and its confirmation and acceptance by mashkour sugar company and discharge of oia bank guarantee of usd 7 5 million as per mail dated 29 03 2011 of mr ghodgankar emphasis supplied 38 28 the communication dated 28th july 2011 addressed by mashkour to overseas would further clarify the position which reads thus we are please to inform you that nominated sub contractor messres kay bouvet engineering private limited has submitted advance payment bank guarantee as well as performance bank guarantee to us as per the sub contract agreement and we are satisfied with the same in the light of the above we request your good self to release the 10 of the sub contract value as per letter dated 21 04 2011 addressed to mashkour the payment to be released as under name of the beneficiary m s kay bouvet engineering private ltd 39 name of bank m s bank of maharashtra satara city branch ifsc code mah80000134 account no 60018168457 mode of payment rtgs amount of rs 47 12 10 000 rupees forty seven crores twelve lakhs ten thousand only as soon as we get confirmation from your side regarding release of payment we shall release your bank guarantee usd 7 5 million as i discussed today with mr suresh i will be in india with original discharge bank guarantee in the beginning of last week emphasis supplied 29 as already discussed hereinabove that kay bouvet had certain grievances with regard to payment of less money on account of exchange rate the communication dated 21st september 2011 addressed by kay bouvet to mashkour would clarify the said position which reads thus we have been paid rs 47 12 10 000 by m s overseas infrastructure alliance india ltd on 30th august 2011 equivalent to usd 10 62 million converted 1 usd rs 44 37 whereas 40 on that day the conversion rate as per the attached list was 1 usd rs 46 26 so the amount would have been rs 49 12 08 012 so they have underpaid a sum of rs 1 99 98 012 so you are requested to advise oia to release amount of rs 1 99 98 012 to us without any delay 30 the last nail in the case of the overseas would be in the nature of communication addressed by the ambassador of sudan to mashkour dated 25th april 2017 which reads thus with reference to the earlier correspondence we have received the do no 1425 secy er 2017 dated 18th april 2017 from mr amar sinha secretary economic relations ministry of external affairs government of india new delhi india expediting the termination of the agreement with overseas infrastructure alliance india private limited oia and that an agreement be signed with kay bouvet engineering ltd kbel as a direct contractor for the unutilized portion of the goi s line of credit for us dollars 150 000 000 for the mashkour sugar project it is on the record that a sum of rs 47 12 10 000 us 10 62 million was paid by oia to kay bouvet engineering ltd kbel on behalf of mashkour sugar company from the funds released to oia by exim bank from the 1st disbursed tranche of us 25 million 41 kindly make a note while signing the revised contract with kbel that the above mentioned amount of us dollars 10 62 shall be adjusted by kay bouvet engineering ltd against the supplies to be made to mashkour sugar company ltd for the purpose of completing the project naturally it should be borne in mind that the termination of oia contract with mashkour should not absolve them of any liability for the balance of the loc 1st tranche of 25 million disbursed to them other than the us dollars 10 62 already paid to kbel and which will be adjusted when a contract is signed with kbel as a main contractor emphasis supplied 31 it is thus abundantly clear that the case of kay bouvet that the amount of rs 47 12 10 000 which was paid to it by overseas was paid on behalf of mashkour from the funds released to overseas by exim bank on behalf of mashkour cannot be said to be a dispute which is spurious illusory or not supported by the evidence placed on record the material placed on record amply clarifies that the initial payment which was made to kay bouvet as a sub contractor by overseas who 42 was a contractor was made on behalf of mashkour and from the funds received by overseas from mashkour it will also be clear that when a new contract was entered into between mashkour and kay bouvet directly mashkour had directed the said amount of rs 47 12 10 000 to be adjusted against the supplies to be made to mashkour sugar company ltd for the purpose of completing the project on the contrary the documents clarify that the termination of the contract with overseas would not absolve overseas of any liability for the balance of the loc 1st tranche of 25 million disbursed to them other than usd 10 62 paid to kay bouvet 32 in these circumstances we find that nclt had rightly rejected the application of overseas after finding that there existed a dispute between kay bouvet and overseas and as such an order under section 9 of the ibc would not have been passed we find that nclat has patently misinterpreted the factual as well as legal position and erred in reversing the order of nclt and directing admission of section 9 petition 43 33 resultantly this appeal is allowed and the impugned order dated 21st december 2018 passed by nclat is quashed and set aside the order passed by nclt dated 26th july 2018 is maintained 34 in view of the above all the pending ias shall stand disposed of j r f nariman j b r gavai new delhi august 10 2021 44 2356 2019_w p c no 000116 2019 wb hira rera rera sarfaesi securitization and reconstruction of financial assets and enforcement of security interest act the arbitration and conciliation act 1996 2025 10 06 of the appellate tribunal shall consist of at least one judicial member and one administrative to technical member 4 the appropriate government of two or more states or union territories may if it deems fit details of his enterprise including its name registered address type of enterprise proprietorship societies partnership companies competent authority and the particulars of registration and the names and photographs of the promoter b a brief detail of the projects launched by him in the past five years whether already completed or being developed as the case may be including the current status of the said projects any delay in its completion details of cases pending details of type of land and payments pending c an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application and where the project is proposed to be developed in phases an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases d the sanctioned plan layout plan and specifications of the 1956 scr 393 1956 scr 393 1962 sc 1044 r v brisbane ltd v cowburn victoria v commonwealth wenn v attorney limited v cowburn ltd v forsyth ltd v satpal ltd v arihant gmbh v sail mcd v prem sarin v state reportable in the supreme court of india civil original jurisdiction writ petition c no 116 of 2019 forum for people s collective efforts fpce anr petitioners versus the state of west bengal anr respondents 1 j u d g m e n t dr justice dhananjaya y chandrachud a the challenge b legislative history c rera the legislative process d salient features rera e salient provisions of wb hira f rera and wb hira provisions at variance g submissions g 1 for the petitioners g 2 for the union of india g 3 for the state of west bengal h analysis h 1 entry 24 list ii west bengal s housing industry defense h 2 the constitutional scheme of article 254 and repugnancy h 3 repugnancy rera and wb hira 2 h 3 1 meaning of is in addition to and not in derogation of any other law h 3 2 meaning of law for the time being in force h 3 3 knitting it together h 4 lack of presidential assent for wb hira i conclusion 3 part a a the challenge 1 the constitutional validity of the west bengal housing industry regulation act 2017 wb hira the state enactment is challenged in a petition under article 32 the basis of the challenge is that i both wb hira and a parliamentary enactment the real estate regulation and development act 2016 rera the central enactment are relatable to the legislative subjects contained in entries 6 and 7 of the concurrent list interchangeably referred to as list iii of the seventh schedule to the constitution ii wb hira has neither been reserved for nor has it received presidential assent under article 254 2 iii the state enactment contains certain provisions which are either a directly inconsistent with the corresponding provisions of the central enactment or b a virtual replica of the central enactment and iv parliament having legislated on a field covered by the concurrent list it is constitutionally impermissible for the state legislature to enact a law over the same subject matter by setting up a parallel legislation nuances apart this in substance is the essence of the challenge 4 part b b legislative history 2 before parliament enacted the rera in 2016 the state legislatures had enacted several laws to regulate the relationship between promoters and purchasers of real estate among them was the west bengal regulation of promotion of construction and transfer by promoters act 1993 the wb 1993 act this legislation of the state of west bengal was reserved for and received presidential assent following which it was published in the official gazette on 9 march 1994 many other states enacted laws on the subject including among them i the maharashtra housing regulation and development act 2012 the maharashtra act which received presidential assent on 2 february 2014 and ii the kerala real estate regulation and development act 2015 the kerala act was enacted by the state legislative assembly on 3 february 2016 3 on 14 august 2013 the bill for enactment of the rera was introduced in the rajya sabha the bill was passed by the rajya sabha on 10 march 2016 and by the lok sabha on 15 march 2016 the law received the assent of the president on 25 march 2016 and was published in the official gazette on the next day rera 1 was then partially enforced on 1 may 2016 while the rest of its provisions were 2 enforced on 19 april 2017 the maharashtra act was specifically repealed by 1 sections 2 20 to 39 41 to 58 71 to 78 and 81 to 92 2 sections 3 to 19 40 59 to 70 79 to 80 5 part c 3 rera while the kerala act was repealed by the state legislative assembly 4 through the kerala real estate regulation and development repeal act 2017 4 in the state of west bengal draft rules under the rera were framed on 18 august 2016 but no further progress was made in that regard on 16 august 2017 the motion for passing the wb hira bill was adopted in the state legislative assembly the state enactment received the assent of the governor of west bengal 5 on 17 october 2017 inter alia the wb hira repealed the wb 1993 act the 6 remaining provisions of wb hira were enforced by a notification dated 29 march 2018 issued by the governor of the state of west bengal in exercise of the power conferred by sub section 3 of section 1 of wb hira thereafter on 8 june 2018 the state of west bengal framed rules under wb hira c rera the legislative process 5 the standing committee on urban development 2012 2013 of the fifteenth lok sabha submitted its thirtieth report on the real estate regulation and development bill 2013 the rera bill 2013 pertaining to the ministry of housing and urban poverty alleviation while adopting the draft report on 12 february 2014 the committee emphasized the need for enacting a comprehensive legislation to 3 section 92 repeal the maharashtra housing regulation and development act 2012 is hereby repealed 4 its statement of objects and reasons noted as per clause 1 of article 254 of the indian constitution if any provision of a law made by the legislature of a state is repugnant to any law made by the parliament the law made by the legislature of a state shall become void therefore the government have decided to repeal the kerala real estate regulation and development act 2015 5 86 repeal and savings 1 the west bengal regulation of promotion of construction and transfer by promoters act 1993 is hereby repealed 6 no 18 hiv 3m 3 17 part 2 6 part c regulate the real estate sector the backdrop is succinctly summarized in the prefatory paragraphs of the report which are set out below over the past few decades the demand for housing has increased manifold in spite of government s efforts through various schemes it has not been able to cope up with the increasing demands taking advantage of the situation the private players have taken over the real estate sector with no concern for the consumers though availability of loans both through private and public banks has become easier the high rate of interest and the higher emi has posed additional financial burden on the people with the largely unregulated real estate and housing sector consequently the consumers are unable to procure complete information or enforce accountability against builders and developers in the absence of an effective mechanism in place at this juncture the need for the real estate regulation and development bill is felt badly for establishing an oversight mechanism to enforce accountability of the real estate sector and providing adjudication machinery for speedy dispute redressal 1 2 the real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country while this sector has grown significantly in recent years it has been largely unregulated there is thus absence of professionalism and standardization and lack of adequate consumer protection though the consumer protection act 1986 is available as a forum to the buyers in the real estate market the recourse is only curative and is inadequate to address all the concerns of buyers and promoters in that sector the lack of standardization has been a constraint to the healthy and orderly growth of industry therefore the need for regulating the sector has been emphasized in various forums 6 upon being introduced in the rajya sabha the rera bill 2013 was referred to a twenty one member select committee on a motion adopted by the house on 6 may 2015 the committee held seventeen sittings nine in delhi and the remaining in different parts of the country as many as 445 persons appeared before the select 7 part c committee drawn from different categories and groups of stakeholders representatives of consumers resident welfare associations promoter builders banks and financial institutions housing ministries of all the states and union territories law firms and independent experts in the field of real estate following a press communique the select committee invited suggestions and views from the members of the public receiving a total of 273 suggestions it further visited kolkata bengaluru mumbai and shimla to interact with stakeholders in various parts of the country while discussing diverse issues which were presented before it by stakeholders the select committee noted the grievances of consumers many of whom were duped by unscrupulous promoters and were made to run from pillar to post to secure possession of the apartments which were agreed to be sold or a refund of their moneys the plight of the consumers is highlighted in the following passage in the report of the select committee which was presented before the rajya sabha on 30 july 2015 i consumers and resident welfare association the committee came across many instances of standalone projects where the consumers were fleeced by the unscrupulous promoters these consumer invested their hard earned money for their dream houses which turned out to be a nightmare for them while they run from pillar to post either to get the possession of their apartment or refund of their money back and fighting cases in the courts the consumers were unanimous in their submission that they have no means to know about the real status of the project for example whether all the approvals have been obtained who is holding the title of the land what is the financing pattern of the project and what has been the past record of the builder etc as a result they invested their money without having any information about the project in many cases they were not given what was promised to them and in almost all the cases 8 part c the project was delayed submitting their views on the bill they highlighted the following points a there should not be any deemed provision for the registration of project by promoter the projects should be registered only after thorough scrutiny b any housing project should commence only after obtaining al the approvals by the promoter and they should have access to all the documents before entering into agreement of sale c the advance cost of apartment plot or building before entering into written agreement should not be more than one lakh or 5 of the cost of apartment whichever is less clause 13 1 d there should be model agreement for sale which should be appended to the bill e in case of default by a promoter they should be given refund of money at the market rate prevailing at that time with interest f there should be one criterion for selling a flat i e the carpet area which should be clearly defined and should not be linked to national building code which can be damaged any time independent of the bill g the definition of the term advertisement should be made more exhaustive and the definition of the term allottee should also include the association of allottees or group of allottees so that they can in case of need take up the cause collectively h information relating to various clearances credentials of promoter i e cases pending against defaults in payments in the past projects left in between in the past etc water harvesting environmental impact net worth of promoters and financing pattern etc should be given i regarding the provision to keep 50 of the amount realized for the project from allottees in a separate account it was demanded that this amount should not be less than 70 j on structural defect after handing over the possession it was demanded that the liability of promoter should be increased from 2 years to 5 years k in case any project is abandoned by a promoter the way out suggested in clause 16 is inappropriate in such an eventuality the promoter be subjected to heavy penalty and compelled to carry the project through rather than considering the suggested options which were not practicable l in case of default allottees are charged penalty at much higher rate of interest compared to default on the part of the promoter 9 part c m there should not be any exemption to any project from the provisions of this bill in respect of area and number of flats n timely formation of the association of allottees and handing over of the common areas to the association for management at the earliest o parking areas accommodation for domestic help to be dealt as per the supreme court judgment 7 in bringing about a balance between the need to protect consumers with the necessity of encouraging investment in the real estate sector the committee observed that while it shared the concerns of consumers many of whom have to suffer because of fly by night operators it was cognizant of the position that the real estate sector was largely being developed through private promoters all of whom could not be tarred with the same brush the select committee observed that there was a need to ensure that a renewed impetus is provided for the growth of the real estate sector to fulfill the government s objective of ensuring housing for all while at the same time protecting the interest of consumers the committee struck a legislative balance between these objects seeking to stand by the good consumer and the good promoter 8 following the report of the select committee the real estate regulation and development bill 2016 the rera bill 2016 was introduced the statement of objects and reasons accompanying the rera bill 2016 emphasizes the basic rationale for the enactment of the legislation statement of objects and reasons the real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country while this sector has grown significantly in recent 10 part c years it has been largely unregulated with absence of professionalism and standardization and lack of adequate consumer protection though the consumer protection act 1986 is available as a forum to the buyers in the real estate market the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector the lack of standardization has been a constraint to the healthy and orderly growth of industry therefore the need for regulating the sector has been emphasized in various forums 2 in view of the above it becomes necessary to have a central legislation namely the real estate regulation and development bill 2013 in the interests of effective consumer protection uniformity and standardization of business practices and transactions in the real estate sector the proposed bill provides for the establishment of the real estate regulatory authority the authority for regulation and promotion of real estate sector and to ensure sale of plot apartment or building as the case may be in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the real estate appellate tribunal to hear appeals from the decisions directions or orders of the authority 3 the proposed bill will ensure greater accountability towards consumers and significantly reduce frauds and delays as also the current high transactions costs it attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both it seeks to establish symmetry of information between the promoter and purchaser transparency of contractual conditions set minimum standards of accountability and a fast track dispute resolution mechanism the proposed bill will induct professionalism and standardization in the sector thus paving the way for accelerated growth and investments in the long run emphasis supplied 9 the legislative background antecedent to and ultimately culminating in the enactment of the rera indicates firstly the circumstances which gave rise to the need for comprehensive parliamentary legislation on the subject secondly the 11 part c specific inadequacies in the development of the real estate sector which were a source of exploitation of purchasers thirdly the legislative policy underlying the enactment of the law and fourthly the context in which specific statutory provisions have been adopted as the instrument for bringing about orderly development and growth of the real estate sector the legislative background demonstrates the concern of the policy makers that the unregulated growth of the real estate sector accompanied by a lack of professionalism and standardization had resulted in serious hardship to consumers the real estate sector is of crucial significance to meet the demand for housing in the country while remedies were provided to consumers by the consumer protection act 1986 this recourse was curative and did not assuage all the concerns of buyers on the one hand and promoters on the other hand in the sector there existed an asymmetry of information between promoters and buyers of real estate buyers lacked adequate information about the title to the land the nature of the development pricing of projects and the progress of construction a lack of standardization and uniformity was a key factor restraining the balanced growth and development of the real estate sector the central enactment sought to remedy the drawbacks of the existing regulatory framework in the country by establishing a real estate regulatory authority to ensure that transactions between promoters and buyers are governed by the twin norms of efficiency and transparency it sought to bring about accountability towards consumers and to significantly reduce frauds delays and high transaction costs while imposing duties and responsibilities on promoters and purchasers rera sought to achieve its objectives by ensuring 12 part c i symmetry of information between promoters and purchasers ii transparency of contractual conditions iii threshold standards of standardization of accountability and iv a fast track dispute resolution mechanism besides the statement of objects and reasons the long title to the legislation dwells on the purpose of the law in the following terms an act to establish the real estate regulatory authority for regulation and promotion of the real estate sector and to ensure sale of plot apartment or building as the case may be or sale of real estate project in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the appellate tribunal to hear appeals from the decisions directions or orders of the real estate regulatory authority and the adjudicating officer and for matters connected therewith or incidental thereto 10 as such the legislative background underlying the enactment of the rera demonstrates a clear emphasis on i standardization ii uniformity and iii symmetry of information these elements provide the justification for enacting a comprehensive legislation which is uniformly applicable to all parts of the country 13 part d d salient features rera 11 before we proceed further some of the salient features of the rera need to be noticed i the expression real estate project is defined in section 2 zn zn real estate project means the development of a building or a building consisting of apartments or converting an existing building or a part thereof into apartments or the development of land into plots or apartments as the case may be for the purpose of selling all or some of the said apartments or plots or building as the case may be and includes the common areas the development works all improvements and structures thereon and all easement rights and appurtenances belonging thereto ii the expression apartment which is adverted to in the definition of real estate project under section 2 zn is defined in section 2 e as follows e apartment whether called block chamber dwelling unit flat office showroom shop godown premises suit tenement unit or by any other name means a separate and self contained part of any immovable property including one or more rooms or enclosed spaces located on one or more floors or any part thereof in a building or on a plot of land used or intended to be used for any residential or commercial use such as residence office shop showroom or godown or for carrying on any business occupation profession or trade or for any other type of use ancillary to the purpose specified iii the provisions of the rera are comprised in ten chapters broadly the division is as follows chapter i preliminary chapter ii registration of real estate projects and registration of 14 part d real estate agents chapter iii functions and duties of promoters chapter iv rights and duties of allottees chapter v the real estate regulatory authority chapter vi central advisory council chapter vi the real estate appellate tribunal chapter vii offences penalties and adjudication chapter ix finance accounts audits and reports chapter x miscellaneous iv rera mandates the registration of real estate projects and real estate agents the salient features of this process are a mandatory registration of real estate projects with the real estate regulatory authority is required before the promoter can advertise market book sell or offer for sale or invite persons to purchase a plot apartment or building in a real estate project b mandatory registration of real estate agents before facilitating the sale or purchase of plots apartments or buildings in real estate projects c mandatory public disclosure of all project details by promoters 15 part d d promoters are required to make a mandatory public disclosure of all registered projects on the web site of the authority including lay out plans land titles statutory approvals agreements v rera also provides the functions and duties of promoters in the following terms a disclosure of all relevant information relating to the project b adherence to approved plans and project specifications as approved by competent authorities c obligations regarding veracity of advertisements or prospectus d transfer of title by a registered deed of conveyance e refund of monies in case of default f prohibition on accepting more than ten per cent of the cost as advance without entering into a written agreement for sale g rectification of structural defects for a specified period from the date of possession h formation of an association society or cooperative society of allottees and the execution of a registered deed of conveyance vi it also provides the rights and obligations of allotees which are a obtaining information about sanctioned plans lay outs and specifications approved by the competent authority b the date wise time schedule for completion of the project including provisions for essential amenities 16 part d c claiming possession including possession of the common areas by the association d refund in the event for default e duty to make payments of consideration for the sale of the apartment plot or building together with interest as prescribed f duty to take possession vii establishment of a real estate authority by the appropriate government the state government in a state with corresponding provisions for union territories with the following details provided a composition of the authority b qualifications for appointment to the authority c removal of members and conditions of service d functions of the authority include the growth and promotion of the real estate sector viii rera also provides for the establishment of a central advisory council to advise and make recommendations to the central government on all matters concerning the implementation of rera on major questions on policy towards protection of consumer interest to foster the growth and development of real estate sector and on any other matter as assigned by the central government ix it also establishes the real estate appellate tribunal provides the following details about the institution a establishment 17 part e b settlement of disputes and appeals c composition d conditions of service e powers f appeals x rera notes the offences penalties and adjudication along with a delegated legislation b power of the appropriate government to make rules c framing of regulations by the authority and xi finally sections 88 and 89 of the rera provide as follows 88 application of other laws not barred the provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force 89 act to have overriding effect the provisions of this act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force e salient provisions of wb hira 12 the long title to the state enactment describes the purpose and content of the legislation as an act to establish the housing industry regulatory authority for regulation and promotion of the housing sector and to ensure sale of plot apartment or building as the case may be or sale of real estate project in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish a mechanism for 18 part e speedy dispute redressal and for matters connected therewith or incidental thereto its preamble is in the following terms whereas it is expedient to establish the housing industry regulatory authority for regulation and promotion of the housing sector and to ensure sale of plot apartment or building as the case may be or sale of real estate project in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish a mechanism for speedy dispute redressal and for matters connected therewith or incidental thereto the above excerpts indicate that the state enactment purports to set up a regulatory authority for the housing industry save and except for this emphasis on the housing industry the broad purpose of the state enactment coincides with rera before we set out a comparative table of the corresponding provisions of wb hira and rera it is necessary to note at the outset that there is in most of the substantive provisions a complete overlap of the provisions contained in the two statutes evidently the bill for the introduction of wb hira in the state legislature was prepared on the basis of the rera as a drafting model hence during the course of this judgment the provisions of the state enactment which are at variance to those in the central enactment will be delineated separately however at this stage a sampling of some of the crucial provisions would indicate that they are identical in their entirety in the state of west bengal s wb hira and rera which has been enacted by parliament this identical nature is evident from the tabulated statement set out below in which the identical provision is placed in the middle as extracted 19 part e from the rera while it is flanked with its relevant section number and title from rera and wb hira on both sides section and title provision section and title of wb hira of rera 2 b definition b advertisement means any document 2 a definition of of advertisement described or issued as advertisement through any advertisement medium and includes any notice circular or other documents or publicity in any form informing persons about a real estate project or offering for sale of a plot building or apartment or inviting persons to purchase in any manner such plot building or apartment or to make advances or deposits for such purposes 2 d definition d allottee in relation to a real estate project 2 c definition of of allottee means the person to whom a plot apartment or allottee building as the case may be has been allotted sold whether as freehold or leasehold or otherwise transferred by the promoter and includes the person who subsequently acquires the said allotment through sale transfer or otherwise but does not include a person to whom such plot apartment or building as the case may be is given on rent 2 e definition e apartment whether called block chamber 2 d definition of of apartment dwelling unit flat office showroom shop godown apartment premises suit tenement unit or by any other name means a separate and self contained part of any immovable property including one or more rooms or enclosed spaces located on one or more floors or any part thereof in a building or on a plot of land used or intended to be used for any residential or commercial use such as residence office shop showroom or godown or for carrying on any business occupation profession or trade or for any other type of use ancillary to the purpose specified 2 j definition of j building includes any structure or erection or 2 h definition of 20 part e section and title provision section and title of wb hira of rera building part of a structure or erection which is intended to building be used for residential commercial or for the purpose of any business occupation profession or trade or for any other related purposes 2 k definition k carpet area means the net usable floor area 2 j definition of of carpet area of an apartment excluding the area covered by the carpet area external walls areas under services shafts exclusive balcony or verandah area and exclusive open terrace area but includes the area covered by the internal partition walls of the apartment explanation for the purpose of this clause the expression exclusive balcony or verandah area means the area of the balcony or verandah as the case may be which is appurtenant to the net usable floor area of an apartment meant for the exclusive use of the allottee and exclusive open terrace area means the area of open terrace which is appurtenant to the net usable floor area of an apartment meant for the exclusive use of the allottee 2 n definition n common areas mean 2 m definition of of common common areas i the entire land for the real estate project or areas where the project is developed in phases and registration under this act is sought for a phase the entire land for that phase ii the stair cases lifts staircase and lift lobbies fir escapes and common entrances and exits of buildings iii the common basements terraces parks play areas open parking areas and common storage spaces iv the premises for the lodging of persons employed for the management of the property including accommodation for watch and ward staffs or for the lodging of community service 21 part e section and title provision section and title of wb hira of rera personnel v installations of central services such as electricity gas water and sanitation air conditioning and incinerating system for water conservation and renewable energy vi the water tanks sumps motors fans compressors ducts and all apparatus connected with installations for common use vii all community and commercial facilities as provided in the real estate project viii all other portion of the project necessary or convenient for its maintenance safety etc and in common use 2 zk definition zk promoter means 2 zj definition of of promoter promoter i a person who constructs or causes to be constructed an independent building or a building consisting of apartments or converts an existing building or a part thereof into apartments for the purpose of selling all or some of the apartments to other persons and includes his assignees or ii a person who develops land into a project whether or not the person also constructs structures on any of the plots for the purpose of selling to other persons all or some of the plots in the said project whether with or without structures thereon or iii any development authority or any other public body in respect of allottees of a buildings or apartments as the case may be constructed by such authority or body on lands owned by them or placed at their disposal by the government or b plots owned by such authority or body or 22 part e section and title provision section and title of wb hira of rera placed at their disposal by the government for the purpose of selling all or some of the apartments or plots or iv an apex state level co operative housing finance society and a primary co operative housing society which constructs apartments or buildings for its members or in respect of the allottees of such apartments or buildings or v any other person who acts himself as a builder coloniser contractor developer estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale or vi such other person who constructs any building or apartment for sale to the general public explanation for the purposes of this clause where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified under this act or the rules and regulations made thereunder 2 zm definition zm real estate agent means any person who 2 zl definition of of real estate negotiates or acts on behalf of one person in a real estate agent agent transaction of transfer of his plot apartment or building as the case may be in a real estate project by way of sale with another person or transfer of plot apartment or building as the case may be of any other person to him and receives remuneration or fees or any other charges for his services whether as commission or otherwise and includes a person who introduces through any medium prospective buyers and sellers to each 23 part e section and title provision section and title of wb hira of rera other for negotiation for sale or purchase of plot apartment or building as the case may be and includes property dealers brokers middlemen by whatever name called 2 zn definition zn real estate project means the development 2 zm definition of real estate of a building or a building consisting of apartments of real estate project or converting an existing building or a part thereof project into apartments or the development of land into plots or apartment as the case may be for the purpose of selling all or some of the said apartments or plots or building as the case may be and includes the common areas the development works all improvements and structures thereon and all easement rights and appurtenances belonging thereto 3 prior 1 no promoter shall advertise market book sell 3 prior registration of real or offer for sale or invite persons to purchase in registration of real estate project with any manner any plot apartment or building as the estate project with real estate case may be in any real estate project or part of it real estate regulatory in any planning area without registering the real regulatory authority estate project with the real estate regulatory authority authority established under this act provided that projects that are ongoing on the date of commencement of this act and for which the completion certificate has not been issued the promoter shall make an application to the authority for registration of the said project within a period of three months from the date of commencement of this act provided further that if the authority thinks necessary in the interest of allottees for projects which are developed beyond the planning area but with the requisite permission of the local authority it may by order direct the promoter of such project to register with the authority and the provisions of this act or the rules and regulations made thereunder shall apply to such projects from that 24 part e section and title provision section and title of wb hira of rera stage of registration 2 notwithstanding anything contained in sub section 1 no registration of the real estate project shall be required a where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases provided that if the appropriate government considers it necessary it may reduce the threshold below five hundred square meters or eight apartments as the case may be inclusive of all phases for exemption from registration under this act b where the promoter has received completion certificate for a real estate project prior to commencement of this act c for the purpose of renovation or repair or re development which does not involve marketing advertising selling or new allotment of any apartment plot or building as the case may be under the real estate project explanation for the purpose of this section where the real estate project is to be developed in phases every such phase shall be considered a stand alone real estate project and the promoter shall obtain registration under this act for each phase separately 4 application for 1 every promoter shall make an application to the 4 application for registration of real authority for registration of the real estate project registration of real estate projects in such form manner within such time and estate projects accompanied by such fee as may be specified by 25 part e section and title provision section and title of wb hira of rera the regulations made by the authority 2 the promoter shall enclose the following documents along with the application referred to in sub section 1 namely a a brief details of his enterprise including its name registered address type of enterprise proprietorship societies partnership companies competent authority and the particulars of registration and the names and photographs of the promoter b a brief detail of the projects launched by him in the past five years whether already completed or being developed as the case may be including the current status of the said projects any delay in its completion details of cases pending details of type of land and payments pending c an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application and where the project is proposed to be developed in phases an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases d the sanctioned plan layout plan and specifications of the proposed project or the phase thereof and the whole project as sanctioned by the competent authority e the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire fighting facilities drinking water facilities emergency 26 part e section and title provision section and title of wb hira of rera evacuation services use of renewable energy f the location details of the project with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project g proforma of the allotment letter agreement for sale and the conveyance deed proposed to be signed with the allottees h the number type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas apartment with the apartment if any i the number and areas of garage for sale in the project j the names and addresses of his real estate agents if any for the proposed project k the names and addresses of the contractors architect structural engineer if any and other persons concerned with the development of the proposed project l a declaration supported by an affidavit which shall be signed by the promoter or any person authorised by the promoter stating a that he has a legal title to the land on which the development is proposed along with legally valid documents with authentication of such title if such land is owned by another person b that the land is free from all encumbrances or as the case may be details of the encumbrances on such land including any rights title interest or name of any party in or over such land along with details 27 part e section and title provision section and title of wb hira of rera c the time period within which he undertakes to complete the project or phase thereof as the case may be d that seventy per cent of the amounts realised for the real estate project from the allottees from time to time shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose provided that the promoter shall withdraw the amounts from the separate account to cover the cost of the project in proportion to the percentage of completion of the project provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised for the project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project explanation for the purpose of this clause the term schedule bank means a bank included in the second schduled to the reserve bank of india act 1934 e that he shall take all the pending approvals on 28 part e section and title provision section and title of wb hira of rera time from the competent authorities f that he has furnished such other documents as may be prescribed by the rules or regulations made under this act and m such other information and documents as may be prescribed 3 the authority shall operationalise a web based online system for submitting applications for registration of projects within a period of one year from the date of its establishment 5 grant of 1 on receipt of the application under sub section 5 grant of registration 1 of section 4 the authority shall within a period registration of thirty days a grant registration subject to the provisions of this act and the rules and regulations made thereunder and provide a registration number including a login id and password to the applicant for accessing the website of the authority and to create his web page and to fill therein the details of the proposed project or b reject the application for reasons to be recorded in writing if such application does not conform to the provisions of this act or the rules or regulations made thereunder provided that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter 2 if the authority fails to grant the registration or reject the application as the case may be as provided under sub section 1 the project shall be deemed to have been registered and the authority shall within a period of seven days of the expiry of 29 part e section and title provision section and title of wb hira of rera the said period of thirty days specified under sub section 1 provide a registration number and a login id and password to the promoter for accessing the website of the authority and to create his web page and to fill therein the details of the proposed project 3 the registration granted under this section shall be valid for a period declared by the promoter under sub clause c of clause 1 of sub section 2 of section 4 for completion of the project or phase thereof as the case may be 6 extension of the registration granted under section 5 may be 6 extension of registration extended by the authority on an application made registration by the promoter due to force majeure in such form and on payment of such fee as may be specified by regulations made by the authority provided that the authority may in reasonable circumstances without default on the part of the promoter based on the facts of each case and for reasons to be recorded in writing extend the registration granted to a project for such time as it considers necessary which shall in aggregate not exceed a period of one year provided further that no application for extension of registration shall be rejected unless the applicant has been given an opportunity of being heard in the matter explanation for the purpose of this section the expression force majeure shall mean a case of war flood drought fire cyclone earthquake or 30 part e section and title provision section and title of wb hira of rera any other calamity caused by nature affecting the regular development of the real estate project 7 revocation of 1 the authority may on receipt of a complaint or 7 revocation of registration suo motu in this behalf or on the recommendation the registration of the competent authority revoke the registration granted under section 5 after being satisfied that a the promoter makes default in doing anything required by or under this act or the rules or the regulations made thereunder b the promoter violates any of the terms or conditions of the approval given by the competent authority c the promoter is involved in any kind of unfair practice or irregularities explanation for the purposes of this clause the term unfair practice means a practice which for the purpose of promoting the sale or development of any real estate project adopts any unfair method or unfair or deceptive practice including any of the following practices namely a the practice of making any statement whether in writing or by visible representation which i falsely represents that the services are of a particular standard or grade ii represents that the promoter has approval or affiliation which such promoter does not have iii makes a false or misleading representation concerning the services b the promoter permits the publication of any advertisement or prospectus whether in any newspaper or otherwise of services that are not 31 part e section and title provision section and title of wb hira of rera intended to be offered c the promoter indulges in any fraudulent practices 2 the registration granted to the promoter under section 5 shall not be revoked unless the authority has given to the promoter not less than thirty days notice in writing stating the grounds on which it is proposed to revoke the registraton and has considered any cause shown by the promoter within the period of that notice against the proposed revocation 3 the authority may instead of revoking the registration under sub section 1 permit it to remain in force subject to such further terms and conditions as it thinks fit to impose in the interest of the allottees and any such terms and conditions so imposed shall be binding upon the promoter 4 the authority upon the revocation of the registration a shall debar the promoter from accessing its website in relation to that project and specify his name in the list of defaulters and display his photograph on its website and also inform the other real estate regulatory authority in other states and union territories about such revocation or registration b shall facilitate the remaining development works to be carried out in accordance with the provisions of section 8 c shall direct the bank holding the project back 32 part e section and title provision section and title of wb hira of rera account specified under subclause d of clause i of sub section 2 of section 4 to freeze the account and thereafter take such further necessary actions including consequent de freezing of the said account towards facilitating the remaining development works in accordance with the provisions of section 8 d may to protect the interest of allottees or in the public interest issue such directions as it may deem necessary revocation of registration 8 obligation of upon lapse of the registration or on revocation of 8 obligation of authority the registration under this act the authority may authority consequent upon consult the appropriate government to take such consequent upon lapse of or on action as it may deem fit including the carrying out lapse of or on revocation of of the remaining development works by competent revocation of registration authority or by the association of allottees or in any registration other manner as may be determined by the authority provided that no direction decision or order of the authority under this section shall take effect until the expiry of the period of appeal provided under the provisions of this act provided further that in case of revocation of registration of a project under this act the association of allottees shall have the first right of refusal for carrying out of the remaining development works truncated reportable in the supreme court of india civil original jurisdiction writ petition c no 116 of 2019 forum for people s collective efforts fpce anr petitioners versus the state of west bengal anr respondents 1 j u d g m e n t dr justice dhananjaya y chandrachud a the challenge b legislative history c rera the legislative process d salient features rera e salient provisions of wb hira f rera and wb hira provisions at variance g submissions g 1 for the petitioners g 2 for the union of india g 3 for the state of west bengal h analysis h 1 entry 24 list ii west bengal s housing industry defense h 2 the constitutional scheme of article 254 and repugnancy h 3 repugnancy rera and wb hira 2 h 3 1 meaning of is in addition to and not in derogation of any other law h 3 2 meaning of law for the time being in force h 3 3 knitting it together h 4 lack of presidential assent for wb hira i conclusion 3 part a a the challenge 1 the constitutional validity of the west bengal housing industry regulation act 2017 wb hira the state enactment is challenged in a petition under article 32 the basis of the challenge is that i both wb hira and a parliamentary enactment the real estate regulation and development act 2016 rera the central enactment are relatable to the legislative subjects contained in entries 6 and 7 of the concurrent list interchangeably referred to as list iii of the seventh schedule to the constitution ii wb hira has neither been reserved for nor has it received presidential assent under article 254 2 iii the state enactment contains certain provisions which are either a directly inconsistent with the corresponding provisions of the central enactment or b a virtual replica of the central enactment and iv parliament having legislated on a field covered by the concurrent list it is constitutionally impermissible for the state legislature to enact a law over the same subject matter by setting up a parallel legislation nuances apart this in substance is the essence of the challenge 4 part b b legislative history 2 before parliament enacted the rera in 2016 the state legislatures had enacted several laws to regulate the relationship between promoters and purchasers of real estate among them was the west bengal regulation of promotion of construction and transfer by promoters act 1993 the wb 1993 act this legislation of the state of west bengal was reserved for and received presidential assent following which it was published in the official gazette on 9 march 1994 many other states enacted laws on the subject including among them i the maharashtra housing regulation and development act 2012 the maharashtra act which received presidential assent on 2 february 2014 and ii the kerala real estate regulation and development act 2015 the kerala act was enacted by the state legislative assembly on 3 february 2016 3 on 14 august 2013 the bill for enactment of the rera was introduced in the rajya sabha the bill was passed by the rajya sabha on 10 march 2016 and by the lok sabha on 15 march 2016 the law received the assent of the president on 25 march 2016 and was published in the official gazette on the next day rera 1 was then partially enforced on 1 may 2016 while the rest of its provisions were 2 enforced on 19 april 2017 the maharashtra act was specifically repealed by 1 sections 2 20 to 39 41 to 58 71 to 78 and 81 to 92 2 sections 3 to 19 40 59 to 70 79 to 80 5 part c 3 rera while the kerala act was repealed by the state legislative assembly 4 through the kerala real estate regulation and development repeal act 2017 4 in the state of west bengal draft rules under the rera were framed on 18 august 2016 but no further progress was made in that regard on 16 august 2017 the motion for passing the wb hira bill was adopted in the state legislative assembly the state enactment received the assent of the governor of west bengal 5 on 17 october 2017 inter alia the wb hira repealed the wb 1993 act the 6 remaining provisions of wb hira were enforced by a notification dated 29 march 2018 issued by the governor of the state of west bengal in exercise of the power conferred by sub section 3 of section 1 of wb hira thereafter on 8 june 2018 the state of west bengal framed rules under wb hira c rera the legislative process 5 the standing committee on urban development 2012 2013 of the fifteenth lok sabha submitted its thirtieth report on the real estate regulation and development bill 2013 the rera bill 2013 pertaining to the ministry of housing and urban poverty alleviation while adopting the draft report on 12 february 2014 the committee emphasized the need for enacting a comprehensive legislation to 3 section 92 repeal the maharashtra housing regulation and development act 2012 is hereby repealed 4 its statement of objects and reasons noted as per clause 1 of article 254 of the indian constitution if any provision of a law made by the legislature of a state is repugnant to any law made by the parliament the law made by the legislature of a state shall become void therefore the government have decided to repeal the kerala real estate regulation and development act 2015 5 86 repeal and savings 1 the west bengal regulation of promotion of construction and transfer by promoters act 1993 is hereby repealed 6 no 18 hiv 3m 3 17 part 2 6 part c regulate the real estate sector the backdrop is succinctly summarized in the prefatory paragraphs of the report which are set out below over the past few decades the demand for housing has increased manifold in spite of government s efforts through various schemes it has not been able to cope up with the increasing demands taking advantage of the situation the private players have taken over the real estate sector with no concern for the consumers though availability of loans both through private and public banks has become easier the high rate of interest and the higher emi has posed additional financial burden on the people with the largely unregulated real estate and housing sector consequently the consumers are unable to procure complete information or enforce accountability against builders and developers in the absence of an effective mechanism in place at this juncture the need for the real estate regulation and development bill is felt badly for establishing an oversight mechanism to enforce accountability of the real estate sector and providing adjudication machinery for speedy dispute redressal 1 2 the real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country while this sector has grown significantly in recent years it has been largely unregulated there is thus absence of professionalism and standardization and lack of adequate consumer protection though the consumer protection act 1986 is available as a forum to the buyers in the real estate market the recourse is only curative and is inadequate to address all the concerns of buyers and promoters in that sector the lack of standardization has been a constraint to the healthy and orderly growth of industry therefore the need for regulating the sector has been emphasized in various forums 6 upon being introduced in the rajya sabha the rera bill 2013 was referred to a twenty one member select committee on a motion adopted by the house on 6 may 2015 the committee held seventeen sittings nine in delhi and the remaining in different parts of the country as many as 445 persons appeared before the select 7 part c committee drawn from different categories and groups of stakeholders representatives of consumers resident welfare associations promoter builders banks and financial institutions housing ministries of all the states and union territories law firms and independent experts in the field of real estate following a press communique the select committee invited suggestions and views from the members of the public receiving a total of 273 suggestions it further visited kolkata bengaluru mumbai and shimla to interact with stakeholders in various parts of the country while discussing diverse issues which were presented before it by stakeholders the select committee noted the grievances of consumers many of whom were duped by unscrupulous promoters and were made to run from pillar to post to secure possession of the apartments which were agreed to be sold or a refund of their moneys the plight of the consumers is highlighted in the following passage in the report of the select committee which was presented before the rajya sabha on 30 july 2015 i consumers and resident welfare association the committee came across many instances of standalone projects where the consumers were fleeced by the unscrupulous promoters these consumer invested their hard earned money for their dream houses which turned out to be a nightmare for them while they run from pillar to post either to get the possession of their apartment or refund of their money back and fighting cases in the courts the consumers were unanimous in their submission that they have no means to know about the real status of the project for example whether all the approvals have been obtained who is holding the title of the land what is the financing pattern of the project and what has been the past record of the builder etc as a result they invested their money without having any information about the project in many cases they were not given what was promised to them and in almost all the cases 8 part c the project was delayed submitting their views on the bill they highlighted the following points a there should not be any deemed provision for the registration of project by promoter the projects should be registered only after thorough scrutiny b any housing project should commence only after obtaining al the approvals by the promoter and they should have access to all the documents before entering into agreement of sale c the advance cost of apartment plot or building before entering into written agreement should not be more than one lakh or 5 of the cost of apartment whichever is less clause 13 1 d there should be model agreement for sale which should be appended to the bill e in case of default by a promoter they should be given refund of money at the market rate prevailing at that time with interest f there should be one criterion for selling a flat i e the carpet area which should be clearly defined and should not be linked to national building code which can be damaged any time independent of the bill g the definition of the term advertisement should be made more exhaustive and the definition of the term allottee should also include the association of allottees or group of allottees so that they can in case of need take up the cause collectively h information relating to various clearances credentials of promoter i e cases pending against defaults in payments in the past projects left in between in the past etc water harvesting environmental impact net worth of promoters and financing pattern etc should be given i regarding the provision to keep 50 of the amount realized for the project from allottees in a separate account it was demanded that this amount should not be less than 70 j on structural defect after handing over the possession it was demanded that the liability of promoter should be increased from 2 years to 5 years k in case any project is abandoned by a promoter the way out suggested in clause 16 is inappropriate in such an eventuality the promoter be subjected to heavy penalty and compelled to carry the project through rather than considering the suggested options which were not practicable l in case of default allottees are charged penalty at much higher rate of interest compared to default on the part of the promoter 9 part c m there should not be any exemption to any project from the provisions of this bill in respect of area and number of flats n timely formation of the association of allottees and handing over of the common areas to the association for management at the earliest o parking areas accommodation for domestic help to be dealt as per the supreme court judgment 7 in bringing about a balance between the need to protect consumers with the necessity of encouraging investment in the real estate sector the committee observed that while it shared the concerns of consumers many of whom have to suffer because of fly by night operators it was cognizant of the position that the real estate sector was largely being developed through private promoters all of whom could not be tarred with the same brush the select committee observed that there was a need to ensure that a renewed impetus is provided for the growth of the real estate sector to fulfill the government s objective of ensuring housing for all while at the same time protecting the interest of consumers the committee struck a legislative balance between these objects seeking to stand by the good consumer and the good promoter 8 following the report of the select committee the real estate regulation and development bill 2016 the rera bill 2016 was introduced the statement of objects and reasons accompanying the rera bill 2016 emphasizes the basic rationale for the enactment of the legislation statement of objects and reasons the real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country while this sector has grown significantly in recent 10 part c years it has been largely unregulated with absence of professionalism and standardization and lack of adequate consumer protection though the consumer protection act 1986 is available as a forum to the buyers in the real estate market the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector the lack of standardization has been a constraint to the healthy and orderly growth of industry therefore the need for regulating the sector has been emphasized in various forums 2 in view of the above it becomes necessary to have a central legislation namely the real estate regulation and development bill 2013 in the interests of effective consumer protection uniformity and standardization of business practices and transactions in the real estate sector the proposed bill provides for the establishment of the real estate regulatory authority the authority for regulation and promotion of real estate sector and to ensure sale of plot apartment or building as the case may be in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the real estate appellate tribunal to hear appeals from the decisions directions or orders of the authority 3 the proposed bill will ensure greater accountability towards consumers and significantly reduce frauds and delays as also the current high transactions costs it attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both it seeks to establish symmetry of information between the promoter and purchaser transparency of contractual conditions set minimum standards of accountability and a fast track dispute resolution mechanism the proposed bill will induct professionalism and standardization in the sector thus paving the way for accelerated growth and investments in the long run emphasis supplied 9 the legislative background antecedent to and ultimately culminating in the enactment of the rera indicates firstly the circumstances which gave rise to the need for comprehensive parliamentary legislation on the subject secondly the 11 part c specific inadequacies in the development of the real estate sector which were a source of exploitation of purchasers thirdly the legislative policy underlying the enactment of the law and fourthly the context in which specific statutory provisions have been adopted as the instrument for bringing about orderly development and growth of the real estate sector the legislative background demonstrates the concern of the policy makers that the unregulated growth of the real estate sector accompanied by a lack of professionalism and standardization had resulted in serious hardship to consumers the real estate sector is of crucial significance to meet the demand for housing in the country while remedies were provided to consumers by the consumer protection act 1986 this recourse was curative and did not assuage all the concerns of buyers on the one hand and promoters on the other hand in the sector there existed an asymmetry of information between promoters and buyers of real estate buyers lacked adequate information about the title to the land the nature of the development pricing of projects and the progress of construction a lack of standardization and uniformity was a key factor restraining the balanced growth and development of the real estate sector the central enactment sought to remedy the drawbacks of the existing regulatory framework in the country by establishing a real estate regulatory authority to ensure that transactions between promoters and buyers are governed by the twin norms of efficiency and transparency it sought to bring about accountability towards consumers and to significantly reduce frauds delays and high transaction costs while imposing duties and responsibilities on promoters and purchasers rera sought to achieve its objectives by ensuring 12 part c i symmetry of information between promoters and purchasers ii transparency of contractual conditions iii threshold standards of standardization of accountability and iv a fast track dispute resolution mechanism besides the statement of objects and reasons the long title to the legislation dwells on the purpose of the law in the following terms an act to establish the real estate regulatory authority for regulation and promotion of the real estate sector and to ensure sale of plot apartment or building as the case may be or sale of real estate project in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the appellate tribunal to hear appeals from the decisions directions or orders of the real estate regulatory authority and the adjudicating officer and for matters connected therewith or incidental thereto 10 as such the legislative background underlying the enactment of the rera demonstrates a clear emphasis on i standardization ii uniformity and iii symmetry of information these elements provide the justification for enacting a comprehensive legislation which is uniformly applicable to all parts of the country 13 part d d salient features rera 11 before we proceed further some of the salient features of the rera need to be noticed i the expression real estate project is defined in section 2 zn zn real estate project means the development of a building or a building consisting of apartments or converting an existing building or a part thereof into apartments or the development of land into plots or apartments as the case may be for the purpose of selling all or some of the said apartments or plots or building as the case may be and includes the common areas the development works all improvements and structures thereon and all easement rights and appurtenances belonging thereto ii the expression apartment which is adverted to in the definition of real estate project under section 2 zn is defined in section 2 e as follows e apartment whether called block chamber dwelling unit flat office showroom shop godown premises suit tenement unit or by any other name means a separate and self contained part of any immovable property including one or more rooms or enclosed spaces located on one or more floors or any part thereof in a building or on a plot of land used or intended to be used for any residential or commercial use such as residence office shop showroom or godown or for carrying on any business occupation profession or trade or for any other type of use ancillary to the purpose specified iii the provisions of the rera are comprised in ten chapters broadly the division is as follows chapter i preliminary chapter ii registration of real estate projects and registration of 14 part d real estate agents chapter iii functions and duties of promoters chapter iv rights and duties of allottees chapter v the real estate regulatory authority chapter vi central advisory council chapter vi the real estate appellate tribunal chapter vii offences penalties and adjudication chapter ix finance accounts audits and reports chapter x miscellaneous iv rera mandates the registration of real estate projects and real estate agents the salient features of this process are a mandatory registration of real estate projects with the real estate regulatory authority is required before the promoter can advertise market book sell or offer for sale or invite persons to purchase a plot apartment or building in a real estate project b mandatory registration of real estate agents before facilitating the sale or purchase of plots apartments or buildings in real estate projects c mandatory public disclosure of all project details by promoters 15 part d d promoters are required to make a mandatory public disclosure of all registered projects on the web site of the authority including lay out plans land titles statutory approvals agreements v rera also provides the functions and duties of promoters in the following terms a disclosure of all relevant information relating to the project b adherence to approved plans and project specifications as approved by competent authorities c obligations regarding veracity of advertisements or prospectus d transfer of title by a registered deed of conveyance e refund of monies in case of default f prohibition on accepting more than ten per cent of the cost as advance without entering into a written agreement for sale g rectification of structural defects for a specified period from the date of possession h formation of an association society or cooperative society of allottees and the execution of a registered deed of conveyance vi it also provides the rights and obligations of allotees which are a obtaining information about sanctioned plans lay outs and specifications approved by the competent authority b the date wise time schedule for completion of the project including provisions for essential amenities 16 part d c claiming possession including possession of the common areas by the association d refund in the event for default e duty to make payments of consideration for the sale of the apartment plot or building together with interest as prescribed f duty to take possession vii establishment of a real estate authority by the appropriate government the state government in a state with corresponding provisions for union territories with the following details provided a composition of the authority b qualifications for appointment to the authority c removal of members and conditions of service d functions of the authority include the growth and promotion of the real estate sector viii rera also provides for the establishment of a central advisory council to advise and make recommendations to the central government on all matters concerning the implementation of rera on major questions on policy towards protection of consumer interest to foster the growth and development of real estate sector and on any other matter as assigned by the central government ix it also establishes the real estate appellate tribunal provides the following details about the institution a establishment 17 part e b settlement of disputes and appeals c composition d conditions of service e powers f appeals x rera notes the offences penalties and adjudication along with a delegated legislation b power of the appropriate government to make rules c framing of regulations by the authority and xi finally sections 88 and 89 of the rera provide as follows 88 application of other laws not barred the provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force 89 act to have overriding effect the provisions of this act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force e salient provisions of wb hira 12 the long title to the state enactment describes the purpose and content of the legislation as an act to establish the housing industry regulatory authority for regulation and promotion of the housing sector and to ensure sale of plot apartment or building as the case may be or sale of real estate project in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish a mechanism for 18 part e speedy dispute redressal and for matters connected therewith or incidental thereto its preamble is in the following terms whereas it is expedient to establish the housing industry regulatory authority for regulation and promotion of the housing sector and to ensure sale of plot apartment or building as the case may be or sale of real estate project in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish a mechanism for speedy dispute redressal and for matters connected therewith or incidental thereto the above excerpts indicate that the state enactment purports to set up a regulatory authority for the housing industry save and except for this emphasis on the housing industry the broad purpose of the state enactment coincides with rera before we set out a comparative table of the corresponding provisions of wb hira and rera it is necessary to note at the outset that there is in most of the substantive provisions a complete overlap of the provisions contained in the two statutes evidently the bill for the introduction of wb hira in the state legislature was prepared on the basis of the rera as a drafting model hence during the course of this judgment the provisions of the state enactment which are at variance to those in the central enactment will be delineated separately however at this stage a sampling of some of the crucial provisions would indicate that they are identical in their entirety in the state of west bengal s wb hira and rera which has been enacted by parliament this identical nature is evident from the tabulated statement set out below in which the identical provision is placed in the middle as extracted 19 part e from the rera while it is flanked with its relevant section number and title from rera and wb hira on both sides section and title provision section and title of wb hira of rera 2 b definition b advertisement means any document 2 a definition of of advertisement described or issued as advertisement through any advertisement medium and includes any notice circular or other documents or publicity in any form informing persons about a real estate project or offering for sale of a plot building or apartment or inviting persons to purchase in any manner such plot building or apartment or to make advances or deposits for such purposes 2 d definition d allottee in relation to a real estate project 2 c definition of of allottee means the person to whom a plot apartment or allottee building as the case may be has been allotted sold whether as freehold or leasehold or otherwise transferred by the promoter and includes the person who subsequently acquires the said allotment through sale transfer or otherwise but does not include a person to whom such plot apartment or building as the case may be is given on rent 2 e definition e apartment whether called block chamber 2 d definition of of apartment dwelling unit flat office showroom shop godown apartment premises suit tenement unit or by any other name means a separate and self contained part of any immovable property including one or more rooms or enclosed spaces located on one or more floors or any part thereof in a building or on a plot of land used or intended to be used for any residential or commercial use such as residence office shop showroom or godown or for carrying on any business occupation profession or trade or for any other type of use ancillary to the purpose specified 2 j definition of j building includes any structure or erection or 2 h definition of 20 part e section and title provision section and title of wb hira of rera building part of a structure or erection which is intended to building be used for residential commercial or for the purpose of any business occupation profession or trade or for any other related purposes 2 k definition k carpet area means the net usable floor area 2 j definition of of carpet area of an apartment excluding the area covered by the carpet area external walls areas under services shafts exclusive balcony or verandah area and exclusive open terrace area but includes the area covered by the internal partition walls of the apartment explanation for the purpose of this clause the expression exclusive balcony or verandah area means the area of the balcony or verandah as the case may be which is appurtenant to the net usable floor area of an apartment meant for the exclusive use of the allottee and exclusive open terrace area means the area of open terrace which is appurtenant to the net usable floor area of an apartment meant for the exclusive use of the allottee 2 n definition n common areas mean 2 m definition of of common common areas i the entire land for the real estate project or areas where the project is developed in phases and registration under this act is sought for a phase the entire land for that phase ii the stair cases lifts staircase and lift lobbies fir escapes and common entrances and exits of buildings iii the common basements terraces parks play areas open parking areas and common storage spaces iv the premises for the lodging of persons employed for the management of the property including accommodation for watch and ward staffs or for the lodging of community service 21 part e section and title provision section and title of wb hira of rera personnel v installations of central services such as electricity gas water and sanitation air conditioning and incinerating system for water conservation and renewable energy vi the water tanks sumps motors fans compressors ducts and all apparatus connected with installations for common use vii all community and commercial facilities as provided in the real estate project viii all other portion of the project necessary or convenient for its maintenance safety etc and in common use 2 zk definition zk promoter means 2 zj definition of of promoter promoter i a person who constructs or causes to be constructed an independent building or a building consisting of apartments or converts an existing building or a part thereof into apartments for the purpose of selling all or some of the apartments to other persons and includes his assignees or ii a person who develops land into a project whether or not the person also constructs structures on any of the plots for the purpose of selling to other persons all or some of the plots in the said project whether with or without structures thereon or iii any development authority or any other public body in respect of allottees of a buildings or apartments as the case may be constructed by such authority or body on lands owned by them or placed at their disposal by the government or b plots owned by such authority or body or 22 part e section and title provision section and title of wb hira of rera placed at their disposal by the government for the purpose of selling all or some of the apartments or plots or iv an apex state level co operative housing finance society and a primary co operative housing society which constructs apartments or buildings for its members or in respect of the allottees of such apartments or buildings or v any other person who acts himself as a builder coloniser contractor developer estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale or vi such other person who constructs any building or apartment for sale to the general public explanation for the purposes of this clause where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified under this act or the rules and regulations made thereunder 2 zm definition zm real estate agent means any person who 2 zl definition of of real estate negotiates or acts on behalf of one person in a real estate agent agent transaction of transfer of his plot apartment or building as the case may be in a real estate project by way of sale with another person or transfer of plot apartment or building as the case may be of any other person to him and receives remuneration or fees or any other charges for his services whether as commission or otherwise and includes a person who introduces through any medium prospective buyers and sellers to each 23 part e section and title provision section and title of wb hira of rera other for negotiation for sale or purchase of plot apartment or building as the case may be and includes property dealers brokers middlemen by whatever name called 2 zn definition zn real estate project means the development 2 zm definition of real estate of a building or a building consisting of apartments of real estate project or converting an existing building or a part thereof project into apartments or the development of land into plots or apartment as the case may be for the purpose of selling all or some of the said apartments or plots or building as the case may be and includes the common areas the development works all improvements and structures thereon and all easement rights and appurtenances belonging thereto 3 prior 1 no promoter shall advertise market book sell 3 prior registration of real or offer for sale or invite persons to purchase in registration of real estate project with any manner any plot apartment or building as the estate project with real estate case may be in any real estate project or part of it real estate regulatory in any planning area without registering the real regulatory authority estate project with the real estate regulatory authority authority established under this act provided that projects that are ongoing on the date of commencement of this act and for which the completion certificate has not been issued the promoter shall make an application to the authority for registration of the said project within a period of three months from the date of commencement of this act provided further that if the authority thinks necessary in the interest of allottees for projects which are developed beyond the planning area but with the requisite permission of the local authority it may by order direct the promoter of such project to register with the authority and the provisions of this act or the rules and regulations made thereunder shall apply to such projects from that 24 part e section and title provision section and title of wb hira of rera stage of registration 2 notwithstanding anything contained in sub section 1 no registration of the real estate project shall be required a where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases provided that if the appropriate government considers it necessary it may reduce the threshold below five hundred square meters or eight apartments as the case may be inclusive of all phases for exemption from registration under this act b where the promoter has received completion certificate for a real estate project prior to commencement of this act c for the purpose of renovation or repair or re development which does not involve marketing advertising selling or new allotment of any apartment plot or building as the case may be under the real estate project explanation for the purpose of this section where the real estate project is to be developed in phases every such phase shall be considered a stand alone real estate project and the promoter shall obtain registration under this act for each phase separately 4 application for 1 every promoter shall make an application to the 4 application for registration of real authority for registration of the real estate project registration of real estate projects in such form manner within such time and estate projects accompanied by such fee as may be specified by 25 part e section and title provision section and title of wb hira of rera the regulations made by the authority 2 the promoter shall enclose the following documents along with the application referred to in sub section 1 namely a a brief details of his enterprise including its name registered address type of enterprise proprietorship societies partnership companies competent authority and the particulars of registration and the names and photographs of the promoter b a brief detail of the projects launched by him in the past five years whether already completed or being developed as the case may be including the current status of the said projects any delay in its completion details of cases pending details of type of land and payments pending c an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the laws as may be applicable for the real estate project mentioned in the application and where the project is proposed to be developed in phases an authenticated copy of the approvals and commencement certificate from the competent authority for each of such phases d the sanctioned plan layout plan and specifications of the proposed project or the phase thereof and the whole project as sanctioned by the competent authority e the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire fighting facilities drinking water facilities emergency 26 part e section and title provision section and title of wb hira of rera evacuation services use of renewable energy f the location details of the project with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project g proforma of the allotment letter agreement for sale and the conveyance deed proposed to be signed with the allottees h the number type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas apartment with the apartment if any i the number and areas of garage for sale in the project j the names and addresses of his real estate agents if any for the proposed project k the names and addresses of the contractors architect structural engineer if any and other persons concerned with the development of the proposed project l a declaration supported by an affidavit which shall be signed by the promoter or any person authorised by the promoter stating a that he has a legal title to the land on which the development is proposed along with legally valid documents with authentication of such title if such land is owned by another person b that the land is free from all encumbrances or as the case may be details of the encumbrances on such land including any rights title interest or name of any party in or over such land along with details 27 part e section and title provision section and title of wb hira of rera c the time period within which he undertakes to complete the project or phase thereof as the case may be d that seventy per cent of the amounts realised for the real estate project from the allottees from time to time shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose provided that the promoter shall withdraw the amounts from the separate account to cover the cost of the project in proportion to the percentage of completion of the project provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the project provided also that the promoter shall get his accounts audited within six months after the end of every financial year by a chartered accountant in practice and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised for the project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project explanation for the purpose of this clause the term schedule bank means a bank included in the second schduled to the reserve bank of india act 1934 e that he shall take all the pending approvals on 28 part e section and title provision section and title of wb hira of rera time from the competent authorities f that he has furnished such other documents as may be prescribed by the rules or regulations made under this act and m such other information and documents as may be prescribed 3 the authority shall operationalise a web based online system for submitting applications for registration of projects within a period of one year from the date of its establishment 5 grant of 1 on receipt of the application under sub section 5 grant of registration 1 of section 4 the authority shall within a period registration of thirty days a grant registration subject to the provisions of this act and the rules and regulations made thereunder and provide a registration number including a login id and password to the applicant for accessing the website of the authority and to create his web page and to fill therein the details of the proposed project or b reject the application for reasons to be recorded in writing if such application does not conform to the provisions of this act or the rules or regulations made thereunder provided that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter 2 if the authority fails to grant the registration or reject the application as the case may be as provided under sub section 1 the project shall be deemed to have been registered and the authority shall within a period of seven days of the expiry of 29 part e section and title provision section and title of wb hira of rera the said period of thirty days specified under sub section 1 provide a registration number and a login id and password to the promoter for accessing the website of the authority and to create his web page and to fill therein the details of the proposed project 3 the registration granted under this section shall be valid for a period declared by the promoter under sub clause c of clause 1 of sub section 2 of section 4 for completion of the project or phase thereof as the case may be 6 extension of the registration granted under section 5 may be 6 extension of registration extended by the authority on an application made registration by the promoter due to force majeure in such form and on payment of such fee as may be specified by regulations made by the authority provided that the authority may in reasonable circumstances without default on the part of the promoter based on the facts of each case and for reasons to be recorded in writing extend the registration granted to a project for such time as it considers necessary which shall in aggregate not exceed a period of one year provided further that no application for extension of registration shall be rejected unless the applicant has been given an opportunity of being heard in the matter explanation for the purpose of this section the expression force majeure shall mean a case of war flood drought fire cyclone earthquake or 30 part e section and title provision section and title of wb hira of rera any other calamity caused by nature affecting the regular development of the real estate project 7 revocation of 1 the authority may on receipt of a complaint or 7 revocation of registration suo motu in this behalf or on the recommendation the registration of the competent authority revoke the registration granted under section 5 after being satisfied that a the promoter makes default in doing anything required by or under this act or the rules or the regulations made thereunder b the promoter violates any of the terms or conditions of the approval given by the competent authority c the promoter is involved in any kind of unfair practice or irregularities explanation for the purposes of this clause the term unfair practice means a practice which for the purpose of promoting the sale or development of any real estate project adopts any unfair method or unfair or deceptive practice including any of the following practices namely a the practice of making any statement whether in writing or by visible representation which i falsely represents that the services are of a particular standard or grade ii represents that the promoter has approval or affiliation which such promoter does not have iii makes a false or misleading representation concerning the services b the promoter permits the publication of any advertisement or prospectus whether in any newspaper or otherwise of services that are not 31 part e section and title provision section and title of wb hira of rera intended to be offered c the promoter indulges in any fraudulent practices 2 the registration granted to the promoter under section 5 shall not be revoked unless the authority has given to the promoter not less than thirty days notice in writing stating the grounds on which it is proposed to revoke the registraton and has considered any cause shown by the promoter within the period of that notice against the proposed revocation 3 the authority may instead of revoking the registration under sub section 1 permit it to remain in force subject to such further terms and conditions as it thinks fit to impose in the interest of the allottees and any such terms and conditions so imposed shall be binding upon the promoter 4 the authority upon the revocation of the registration a shall debar the promoter from accessing its website in relation to that project and specify his name in the list of defaulters and display his photograph on its website and also inform the other real estate regulatory authority in other states and union territories about such revocation or registration b shall facilitate the remaining development works to be carried out in accordance with the provisions of section 8 c shall direct the bank holding the project back 32 part e section and title provision section and title of wb hira of rera account specified under subclause d of clause i of sub section 2 of section 4 to freeze the account and thereafter take such further necessary actions including consequent de freezing of the said account towards facilitating the remaining development works in accordance with the provisions of section 8 d may to protect the interest of allottees or in the public interest issue such directions as it may deem necessary revocation of registration 8 obligation of upon lapse of the registration or on revocation of 8 obligation of authority the registration under this act the authority may authority consequent upon consult the appropriate government to take such consequent upon lapse of or on action as it may deem fit including the carrying out lapse of or on revocation of of the remaining development works by competent revocation of registration authority or by the association of allottees or in any registration other manner as may be determined by the authority provided that no direction decision or order of the authority under this section shall take effect until the expiry of the period of appeal provided under the provisions of this act provided further that in case of revocation of registration of a project under this act the association of allottees shall have the first right of refusal for carrying out of the remaining development works truncated 2357 2009_c a no 005160 005160 2010 versus district collector state level vigilance committee tamil nadu ors addl commissioner 2008 09 04 anr v addl dayaram v sudhir non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 5160 of 2010 j chitra appellant versus district collector and chairman state level vigilance committee tamil nadu ors respondents j u d ge m e n t l nageswara rao j 1 a writ petition was filed by the appellant challenging the order dated 09 04 2008 passed by the chennai district vigilance committee cancelling the community certificate the writ petition was dismissed by the high court of madras by a judgment dated 22 12 2008 aggrieved by which this appeal is filed the tahsildar mylapore triplicane chennai issued a community certificate showing the appellant to be from valluvan community on 28 08 1982 when she was studying in tenth class at the time of joining service in the office of accountant general the appellant applied for a community certificate tahsildar mylapore triplicane chennai issued a community certificate on 12 07 1985 which 1 pa ge was submitted by the appellant after joining the service on 17 07 1985 a complaint was preferred by dr ambedkar service association in the office of the accountant general raising doubts about the community certificate produced by the appellant at the time of joining service the appellant was directed to attend an inquiry to be conducted by the collector regarding the genuineness of the community certificate a notice was issued by the district collector chennai on 27 05 1998 directing the appellant to show cause as to why her community certificate should not be cancelled the district collector directed the revenue divisional officer to conduct an inquiry an inquiry was conducted by the district vigilance committee after conducting an inquiry the district vigilance committee expressed its view that the appellant belongs to valluvan community which is a scheduled caste 2 on 27 01 2000 the service of the appellant as section officer was regularized the appellant was promoted as assistant accounts officer on 31 12 2001 in the meanwhile dr ambedkar service association submitted another representation that suitable action should be taken against the appellant for securing employment as reserved category candidate on the basis of a false caste certificate the state level scrutiny committee informed the appellant that a complaint was received from dr ambedkar service 2 pa ge association and directed the appellant to be present for inquiry to be conducted on 24 03 2003 responding to the notice the appellant attended the inquiry before the state level scrutiny committee in the meanwhile the district vigilance committees were reconstituted by the government of tamil nadu vide g o ms 111 adi dravidar and tribal welfare adw 10 department dated 06 07 2005 the state level scrutiny committee remanded the inquiry pertaining to the community certificate of the appellant to the district vigilance committee on 04 01 2006 the functions of the district vigilance committees and state vigilance committees as well as the procedure to conduct an inquiry were enumerated by g o 2d no 108 adi dravidar and tribal welfare cv i department dated 12 09 2007 the appellant was directed to appear before the district vigilance committee pursuant to which the appellant as well as her mother attended the inquiry and submitted relevant documents before the district vigilance committee on 09 04 2008 an order was passed by the district vigilance committee cancelling community certificate of the appellant assailing the legality and validity of the order dated 09 04 2008 the appellant filed a writ petition in the high court of madras which was dismissed by a judgment dated 22 12 2008 ergo this appeal 3 pa ge 3 mr k ramamoorthy learned senior counsel appearing for the appellant submitted that the community certificate issued in favour of the appellant was subject matter of an inquiry by the district vigilance committee in the year 1999 thereafter the state level scrutiny committee did not have jurisdiction to remand the matter to the district vigilance committee for a fresh inquiry into the genuineness of the claim of the appellant that she belongs to scheduled castes the decision of the district vigilance committee on 31 12 1999 upholding the claim of the appellant that she belongs to valluvan community remains unchallenged mr k ramamoorthy argued that community certificates which have become final cannot be reopened as held by this court in kumari madhuri patil anr v addl commissioner tribal development ors 1 and dayaram v sudhir batham ors 2 he relied upon the memorandum of family settlement dated 01 11 1932 and the sale deed dated 05 10 1978 executed by abdul masjid rawoother in favour of father of the appellant which clearly show that the appellant belongs to scheduled caste he referred to g o 2d no 108 dated 12 09 2007 to state that the dispute relating to the community certificate issued in favour of the appellant cannot be remitted by the state level scrutiny committee to the district level vigilance committee for reconsideration 1 1994 6 scc 241 2 2012 1 scc 333 4 pa ge the learned senior counsel for the appellant contended that the order dated 09 04 2008 deserves to be set aside as the evidence recorded by the district vigilance committee are contrary to the findings arrived at by the district vigilance committee in the year 1999 4 mr pulkit tare learned counsel appearing for the state submitted that district vigilance committees for verification of community certificates issued to a scheduled caste scheduled tribe were reconstituted by g o ms no 111 adi dravidar and tribal welfare dated 6 7 2005 pursuant to the judgment of this court in kumari madhuri patil supra the government constituted district level vigilance committees at district level and state level scrutiny committee at state level to verify genuineness of the community certificates issued to schedule castes scheduled tribes after the reconstitution of district level vigilance committees on 06 07 2005 the government issued guidelines by g o 108 on 12 09 2007 for the functions of the district and state level scrutiny committees relating to verification on the genuineness of the community service the learned counsel for the state submitted that the remand by the state level scrutiny committee to the district vigilance committee for a fresh inquiry into the community certificate of the appellant was in accordance with the guidelines issued by the government by g o 108 dated 12 09 2007 it was further 5 pa ge contended on behalf of the state that the district vigilance committee conducted a detailed inquiry to come to a conclusion that the appellant does not belong to a scheduled caste 5 realizing the pernicious practice of false caste certificates being utilized for the purpose of securing admission to educational institutions and public employment depriving genuine candidates of the benefits of reservation this court in kumari madhuri patil supra issued the following directions 1 the application for grant of social status certificate shall be made to the revenue sub divisional officer and deputy collector or deputy commissioner and the certificate shall be issued by such officer rather than at the officer taluk or mandal level 2 the parent guardian or the candidate as the case may be shall file an affidavit duly sworn and attested by a competent gazetted officer or non gazetted officer with particulars of castes and sub castes tribe tribal community parts or groups of tribes or tribal communities the place from which he originally hails from and other particulars as may be prescribed by the directorate concerned 3 application for verification of the caste certificate by the scrutiny committee shall be filed at least six months in advance before seeking admission 6 pa ge into educational institution or an appointment to a post 4 all the state governments shall constitute a committee of three officers namely i an additional or joint secretary or any officer high er in rank of the director of the department concerned ii the director social welfare tribal welfare backward class welfare as the case may be and iii in the case of scheduled castes another officer who has intimate knowledge in the verification and issuance of the social status certificates in the case of the scheduled tribes the research officer who has intimate knowledge in identifying the tribes tribal communities parts of or groups of tribes or tribal communities 5 each directorate should constitute a vigilance cell consisting of senior deputy superintendent of police in over all charge and such number of police inspectors to investigate into the social status claims the inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city the place from which he originally hailed from the vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian as the case may be he should also examine the school records birth registration if any he should also examine the parent guardian or the candidate in relation to their caste etc or such other persons who have knowledge of the social status of the candidate and then submit a report to the directorate together with all 7 pa ge particulars as envisaged in the pro forma in particular of the scheduled tribes relating to their peculiar anthropological and ethnological traits deity rituals customs mode of marriage death ceremonies method of burial of dead bodies etc by the castes or tribes or tribal communities concerned etc 6 the director concerned on receipt of the report from the vigilance officer if he found the claim for social status to be not genuine or doubtful or spurious or falsely or wrongly claimed the director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed the notice should indicate that the representation or reply if any would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice in case the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf the director on receipt of such representation reply shall convene the committee and the joint additional secretary as chairperson who shall give reasonable opportunity to the candidate parent guardian to adduce all evidence in support of their claim a public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim an opportunity 8 pa ge to adduce evidence may be given to him it after giving such opportunity either in person or through counsel the committee may make such inquiry as it deems expedient and consider the claims vis Ć vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof 7 in case the report is in favour of the candidate and found to be genuine and true no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed 8 notice contemplated in para 6 should be issued to the parents guardian also in case candidate is minor to appear before the committee with all evidence in his or their support of the claim for the social status certificates 9 the inquiry should be completed as expeditiously as possible preferably by day to day proceedings within such period not exceeding two months if after inquiry the caste scrutiny committee finds the claim to be false or spurious they should pass an order cancelling the certificate issued and confiscate the same it should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent guardian and the applicant 9 pa ge 10 in case of any delay in finalising the proceedings and in the meanwhile the last date for admission into an educational institution or appointment to an officer post is getting expired the candidate be admitted by the principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent guardian candidate before the competent officer or non official and such admission or appointment should be only provisional subject to the result of the inquiry by the scrutiny committee 11 the order passed by the committee shall be final and conclusive only subject to the proceedings under article 226 of the constitution 12 no suit or other proceedings before any other authority should lie 13 the high court would dispose of these cases as expeditiously as possible within a period of three months in case as per its procedure the writ petition miscellaneous petition matter is disposed of by a single judge then no further appeal would lie against that order to the division bench but subject to special leave under article 136 14 in case the certificate obtained or social status claimed is found to be false the parent guardian the candidate should be prosecuted for making false claim if the prosecution ends in a conviction and sentence of the accused it could be regarded as an offence involving moral turpitude disqualification for elective posts or offices under the 10 pa ge state or the union or elections to any local body legislature or parliament 15 as soon as the finding is recorded by the scrutiny committee holding that the certificate obtained was false on its cancellation and confiscation simultaneously it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment the principal etc of the educational institution responsible for making the admission or the appointing authority should cancel the admission appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post 6 in dayaram supra this court was of the view that the scrutiny committee is an administrative body which verifies the facts and investigates into claims of caste status the orders of the scrutiny committee are open to challenge in proceedings under article 226 of the constitution of india it was further held by this court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this court wanted to eradicate it was observed that the entire scheme in kumari madhuri patil supra will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status 11 pa ge as sc st it was made clear that verification of caste certificates issued without prior inquiry would be verified by the scrutiny committees such of those caste certificates which were issued after due and proper inquiry need not to be verified by the scrutiny committees 7 district vigilance committees for verification of community certificates issued to scheduled castes scheduled tribes were reconstituted on 06 07 2005 pursuant to the judgment of this court in kumari madhuri patil supra g o 108 dated 12 09 2007 contains guidelines issued by the government of tamil nadu for the functioning of the district and state level vigilance committees the guidelines issued by the government in g o 108 of 12 09 2007 are as follows 1 in cases which were remitted to the three member district level vigilance committee by the state level scrutiny committee as per the court directions before 12 09 2007 the decision of the district vigilance committee reconstituted by g o 111 dated 06 07 2005 regarding the genuineness of community certificate of scheduled tribes is final 2 in case of community certificate issued by the deputy tahsildar tahsildar has been found to be not genuine by the three member district vigilance committee and an individual has filed an appeal to the state level 12 pa ge scrutiny committee the individual shall be directed to approach the high court by filing a writ petition 3 if appeals are filed against orders passed by the two member district level vigilance committee to the state level scrutiny committee and were not remitted back to the reconstituted three member scrutiny committee by the government in view of pendency of writ petitions before the court the state level scrutiny committee shall conduct an inquiry 8 in the instant case an inquiry was conducted by the district level vigilance committee which has upheld the community certificate in favour of the appellant the decision of the district level vigilance committee in the year 1999 has not been challenged in any forum the recognition of the community certificate issued in favour of the appellant by the district vigilance committee having become final the state level scrutiny committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the district level vigilance committee the guidelines issued by g o 108 dated 12 09 2007 do not permit the state level scrutiny committee to reopen cases which have become final the purpose of verification of caste certificates by scrutiny committees is to avoid false and bogus claims repeated inquiries for verification of caste certificates would be detrimental to the members of scheduled castes and 13 pa ge scheduled tribes reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry 9 the district level vigilance committee cancelled the community certificate issued in favour of the appellant after conducting an inquiry and coming to a conclusion that she belongs to kailolan community and not to valluvan community which is a scheduled caste in view of the conclusion that the state level scrutiny committee did not have the power to reopen the matter relating to the caste certificate that was approved by the district vigilance committee in the year 1999 without any appeal filed against that order it is not necessary for us to deal with the submissions made on behalf of the appellant relating to the correctness of the findings recorded by the district vigilance committee in the year 09 04 2008 for the foregoing reasons the order dated 09 04 2008 is set aside and the appeal is allowed j l nageswara rao j aniruddha bose new delhi september 02 2021 14 pa ge non reportable in the supreme court of india civil appellate jurisdiction civil appeal no 5160 of 2010 j chitra appellant versus district collector and chairman state level vigilance committee tamil nadu ors respondents j u d ge m e n t l nageswara rao j 1 a writ petition was filed by the appellant challenging the order dated 09 04 2008 passed by the chennai district vigilance committee cancelling the community certificate the writ petition was dismissed by the high court of madras by a judgment dated 22 12 2008 aggrieved by which this appeal is filed the tahsildar mylapore triplicane chennai issued a community certificate showing the appellant to be from valluvan community on 28 08 1982 when she was studying in tenth class at the time of joining service in the office of accountant general the appellant applied for a community certificate tahsildar mylapore triplicane chennai issued a community certificate on 12 07 1985 which 1 pa ge was submitted by the appellant after joining the service on 17 07 1985 a complaint was preferred by dr ambedkar service association in the office of the accountant general raising doubts about the community certificate produced by the appellant at the time of joining service the appellant was directed to attend an inquiry to be conducted by the collector regarding the genuineness of the community certificate a notice was issued by the district collector chennai on 27 05 1998 directing the appellant to show cause as to why her community certificate should not be cancelled the district collector directed the revenue divisional officer to conduct an inquiry an inquiry was conducted by the district vigilance committee after conducting an inquiry the district vigilance committee expressed its view that the appellant belongs to valluvan community which is a scheduled caste 2 on 27 01 2000 the service of the appellant as section officer was regularized the appellant was promoted as assistant accounts officer on 31 12 2001 in the meanwhile dr ambedkar service association submitted another representation that suitable action should be taken against the appellant for securing employment as reserved category candidate on the basis of a false caste certificate the state level scrutiny committee informed the appellant that a complaint was received from dr ambedkar service 2 pa ge association and directed the appellant to be present for inquiry to be conducted on 24 03 2003 responding to the notice the appellant attended the inquiry before the state level scrutiny committee in the meanwhile the district vigilance committees were reconstituted by the government of tamil nadu vide g o ms 111 adi dravidar and tribal welfare adw 10 department dated 06 07 2005 the state level scrutiny committee remanded the inquiry pertaining to the community certificate of the appellant to the district vigilance committee on 04 01 2006 the functions of the district vigilance committees and state vigilance committees as well as the procedure to conduct an inquiry were enumerated by g o 2d no 108 adi dravidar and tribal welfare cv i department dated 12 09 2007 the appellant was directed to appear before the district vigilance committee pursuant to which the appellant as well as her mother attended the inquiry and submitted relevant documents before the district vigilance committee on 09 04 2008 an order was passed by the district vigilance committee cancelling community certificate of the appellant assailing the legality and validity of the order dated 09 04 2008 the appellant filed a writ petition in the high court of madras which was dismissed by a judgment dated 22 12 2008 ergo this appeal 3 pa ge 3 mr k ramamoorthy learned senior counsel appearing for the appellant submitted that the community certificate issued in favour of the appellant was subject matter of an inquiry by the district vigilance committee in the year 1999 thereafter the state level scrutiny committee did not have jurisdiction to remand the matter to the district vigilance committee for a fresh inquiry into the genuineness of the claim of the appellant that she belongs to scheduled castes the decision of the district vigilance committee on 31 12 1999 upholding the claim of the appellant that she belongs to valluvan community remains unchallenged mr k ramamoorthy argued that community certificates which have become final cannot be reopened as held by this court in kumari madhuri patil anr v addl commissioner tribal development ors 1 and dayaram v sudhir batham ors 2 he relied upon the memorandum of family settlement dated 01 11 1932 and the sale deed dated 05 10 1978 executed by abdul masjid rawoother in favour of father of the appellant which clearly show that the appellant belongs to scheduled caste he referred to g o 2d no 108 dated 12 09 2007 to state that the dispute relating to the community certificate issued in favour of the appellant cannot be remitted by the state level scrutiny committee to the district level vigilance committee for reconsideration 1 1994 6 scc 241 2 2012 1 scc 333 4 pa ge the learned senior counsel for the appellant contended that the order dated 09 04 2008 deserves to be set aside as the evidence recorded by the district vigilance committee are contrary to the findings arrived at by the district vigilance committee in the year 1999 4 mr pulkit tare learned counsel appearing for the state submitted that district vigilance committees for verification of community certificates issued to a scheduled caste scheduled tribe were reconstituted by g o ms no 111 adi dravidar and tribal welfare dated 6 7 2005 pursuant to the judgment of this court in kumari madhuri patil supra the government constituted district level vigilance committees at district level and state level scrutiny committee at state level to verify genuineness of the community certificates issued to schedule castes scheduled tribes after the reconstitution of district level vigilance committees on 06 07 2005 the government issued guidelines by g o 108 on 12 09 2007 for the functions of the district and state level scrutiny committees relating to verification on the genuineness of the community service the learned counsel for the state submitted that the remand by the state level scrutiny committee to the district vigilance committee for a fresh inquiry into the community certificate of the appellant was in accordance with the guidelines issued by the government by g o 108 dated 12 09 2007 it was further 5 pa ge contended on behalf of the state that the district vigilance committee conducted a detailed inquiry to come to a conclusion that the appellant does not belong to a scheduled caste 5 realizing the pernicious practice of false caste certificates being utilized for the purpose of securing admission to educational institutions and public employment depriving genuine candidates of the benefits of reservation this court in kumari madhuri patil supra issued the following directions 1 the application for grant of social status certificate shall be made to the revenue sub divisional officer and deputy collector or deputy commissioner and the certificate shall be issued by such officer rather than at the officer taluk or mandal level 2 the parent guardian or the candidate as the case may be shall file an affidavit duly sworn and attested by a competent gazetted officer or non gazetted officer with particulars of castes and sub castes tribe tribal community parts or groups of tribes or tribal communities the place from which he originally hails from and other particulars as may be prescribed by the directorate concerned 3 application for verification of the caste certificate by the scrutiny committee shall be filed at least six months in advance before seeking admission 6 pa ge into educational institution or an appointment to a post 4 all the state governments shall constitute a committee of three officers namely i an additional or joint secretary or any officer high er in rank of the director of the department concerned ii the director social welfare tribal welfare backward class welfare as the case may be and iii in the case of scheduled castes another officer who has intimate knowledge in the verification and issuance of the social status certificates in the case of the scheduled tribes the research officer who has intimate knowledge in identifying the tribes tribal communities parts of or groups of tribes or tribal communities 5 each directorate should constitute a vigilance cell consisting of senior deputy superintendent of police in over all charge and such number of police inspectors to investigate into the social status claims the inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city the place from which he originally hailed from the vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian as the case may be he should also examine the school records birth registration if any he should also examine the parent guardian or the candidate in relation to their caste etc or such other persons who have knowledge of the social status of the candidate and then submit a report to the directorate together with all 7 pa ge particulars as envisaged in the pro forma in particular of the scheduled tribes relating to their peculiar anthropological and ethnological traits deity rituals customs mode of marriage death ceremonies method of burial of dead bodies etc by the castes or tribes or tribal communities concerned etc 6 the director concerned on receipt of the report from the vigilance officer if he found the claim for social status to be not genuine or doubtful or spurious or falsely or wrongly claimed the director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed the notice should indicate that the representation or reply if any would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice in case the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf the director on receipt of such representation reply shall convene the committee and the joint additional secretary as chairperson who shall give reasonable opportunity to the candidate parent guardian to adduce all evidence in support of their claim a public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim an opportunity 8 pa ge to adduce evidence may be given to him it after giving such opportunity either in person or through counsel the committee may make such inquiry as it deems expedient and consider the claims vis Ć vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof 7 in case the report is in favour of the candidate and found to be genuine and true no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed 8 notice contemplated in para 6 should be issued to the parents guardian also in case candidate is minor to appear before the committee with all evidence in his or their support of the claim for the social status certificates 9 the inquiry should be completed as expeditiously as possible preferably by day to day proceedings within such period not exceeding two months if after inquiry the caste scrutiny committee finds the claim to be false or spurious they should pass an order cancelling the certificate issued and confiscate the same it should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent guardian and the applicant 9 pa ge 10 in case of any delay in finalising the proceedings and in the meanwhile the last date for admission into an educational institution or appointment to an officer post is getting expired the candidate be admitted by the principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent guardian candidate before the competent officer or non official and such admission or appointment should be only provisional subject to the result of the inquiry by the scrutiny committee 11 the order passed by the committee shall be final and conclusive only subject to the proceedings under article 226 of the constitution 12 no suit or other proceedings before any other authority should lie 13 the high court would dispose of these cases as expeditiously as possible within a period of three months in case as per its procedure the writ petition miscellaneous petition matter is disposed of by a single judge then no further appeal would lie against that order to the division bench but subject to special leave under article 136 14 in case the certificate obtained or social status claimed is found to be false the parent guardian the candidate should be prosecuted for making false claim if the prosecution ends in a conviction and sentence of the accused it could be regarded as an offence involving moral turpitude disqualification for elective posts or offices under the 10 pa ge state or the union or elections to any local body legislature or parliament 15 as soon as the finding is recorded by the scrutiny committee holding that the certificate obtained was false on its cancellation and confiscation simultaneously it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment the principal etc of the educational institution responsible for making the admission or the appointing authority should cancel the admission appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post 6 in dayaram supra this court was of the view that the scrutiny committee is an administrative body which verifies the facts and investigates into claims of caste status the orders of the scrutiny committee are open to challenge in proceedings under article 226 of the constitution of india it was further held by this court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this court wanted to eradicate it was observed that the entire scheme in kumari madhuri patil supra will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status 11 pa ge as sc st it was made clear that verification of caste certificates issued without prior inquiry would be verified by the scrutiny committees such of those caste certificates which were issued after due and proper inquiry need not to be verified by the scrutiny committees 7 district vigilance committees for verification of community certificates issued to scheduled castes scheduled tribes were reconstituted on 06 07 2005 pursuant to the judgment of this court in kumari madhuri patil supra g o 108 dated 12 09 2007 contains guidelines issued by the government of tamil nadu for the functioning of the district and state level vigilance committees the guidelines issued by the government in g o 108 of 12 09 2007 are as follows 1 in cases which were remitted to the three member district level vigilance committee by the state level scrutiny committee as per the court directions before 12 09 2007 the decision of the district vigilance committee reconstituted by g o 111 dated 06 07 2005 regarding the genuineness of community certificate of scheduled tribes is final 2 in case of community certificate issued by the deputy tahsildar tahsildar has been found to be not genuine by the three member district vigilance committee and an individual has filed an appeal to the state level 12 pa ge scrutiny committee the individual shall be directed to approach the high court by filing a writ petition 3 if appeals are filed against orders passed by the two member district level vigilance committee to the state level scrutiny committee and were not remitted back to the reconstituted three member scrutiny committee by the government in view of pendency of writ petitions before the court the state level scrutiny committee shall conduct an inquiry 8 in the instant case an inquiry was conducted by the district level vigilance committee which has upheld the community certificate in favour of the appellant the decision of the district level vigilance committee in the year 1999 has not been challenged in any forum the recognition of the community certificate issued in favour of the appellant by the district vigilance committee having become final the state level scrutiny committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the district level vigilance committee the guidelines issued by g o 108 dated 12 09 2007 do not permit the state level scrutiny committee to reopen cases which have become final the purpose of verification of caste certificates by scrutiny committees is to avoid false and bogus claims repeated inquiries for verification of caste certificates would be detrimental to the members of scheduled castes and 13 pa ge scheduled tribes reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry 9 the district level vigilance committee cancelled the community certificate issued in favour of the appellant after conducting an inquiry and coming to a conclusion that she belongs to kailolan community and not to valluvan community which is a scheduled caste in view of the conclusion that the state level scrutiny committee did not have the power to reopen the matter relating to the caste certificate that was approved by the district vigilance committee in the year 1999 without any appeal filed against that order it is not necessary for us to deal with the submissions made on behalf of the appellant relating to the correctness of the findings recorded by the district vigilance committee in the year 09 04 2008 for the foregoing reasons the order dated 09 04 2008 is set aside and the appeal is allowed j l nageswara rao j aniruddha bose new delhi september 02 2021 14 pa ge 2390 2020_c a no 005685 005685 2021 2002 12 07 ą¤Ŗ ą¤°ą¤¤ cid 3 ą¤µ ą¤¦ ą¤Æ ą¤ ą¤° cid 3 ą¤ ą¤øą¤µ cid 13 ą¤ ą¤ ą¤Ø ą¤Æ ą¤Æ ą¤²ą¤Æ ą¤® ą¤¦ ą¤µ ą¤Ø ą¤
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ą¤Ø ą¤ø ą¤° ą¤¹ ą¤ truncated 2398 2009_c a no 006821 006821 2009 circular middle management grade scale ii middle management grade scale iii the interview committee 1985 01 28 order dated 30 5 2003 by the division bench which has been assailed in the present appeal interim stay of the operation of the order was granted on 29 9 2009 while granting leave respondent from the inception has not entered appearance in the present proceedings we may note at the inception that of the impugned order itself records that the respondent was subsequently granted promotion thus the issue is only as to whether the respondent could be entitled to promotion from an earlier date the other factor which has been pointed out to us is that the respondent retired in the year 2003 and is stated to have received all retiral and pensionery benefits 2 learned counsel for the appellant sought to canvas before us that the appellant bank acted in accordance with its norms of sealed cover procedure as per staff circular no 118 exhibit p 2 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 6821 2009 state bank of india ors appellant s versus c k karunakaran respondent s o r d e r the respondent was employed with the appellant bank in the middle management grade scale ii and his promotion to middle management grade scale iii came up for consideration in november 1984 when he was interviewed by the interview committee which made its recommendation to the promoting authority in the meantime apparently the disciplinary authority took a decision to initiate departmental action against the respondent on 28 1 1985 his explanation was called for on 18 2 1985 and the charge sheet was issued on 04 11 1985 in view of the pendency of these disciplinary proceedings the promoting authority after considering the recommendations of the interview committee issued a select list on 23 8 1985 but the result of the respondent was kept in a sealed cover the charge sheet resulted in a punishment of censure to the respondent on 28 7 1987 and thus the promotion was not given effect to the order of the disciplinary authority was assailed by the respondent in departmental appeal and the same was dismissed on 13 12 1988 which attained finality 1 the grievance of the respondent was that despite the censure the sealed cover procedure having been adopted the same shall have been given effect to after the period of censure was over in this behalf the respondent filed an appeal before the appellate authority on 26 11 1990 but the same was rejected and thus writ petition being o p no 8947 1992 was filed before the high court of kerala at ernakulam directing the bank to consider the case of the respondent ignoring the sealed cover procedure the writ petition was allowed by the learned single judge in terms of order dated 30 5 2003 opining that the ex post facto decision of imposing censure could not be relied upon for denying the benefit of promotion and since the decision dated 28 1 1985 to take disciplinary action against the respondent was the only impediment standing in the way of the respondent he is entitled to the benefit of promotion the appeal was dismissed by a brief order dated 30 5 2003 by the division bench which has been assailed in the present appeal interim stay of the operation of the order was granted on 29 9 2009 while granting leave respondent from the inception has not entered appearance in the present proceedings we may note at the inception that of the impugned order itself records that the respondent was subsequently granted promotion thus the issue is only as to whether the respondent could be entitled to promotion from an earlier date the other factor which has been pointed out to us is that the respondent retired in the year 2003 and is stated to have received all retiral and pensionery benefits 2 learned counsel for the appellant sought to canvas before us that the appellant bank acted in accordance with its norms of sealed cover procedure as per staff circular no 118 exhibit p 2 the relevant part of the circular is as under 3 keeping in view the principles of natural justice and with a view to maintaining uniformity in this regard it has been decided to introduce the sealed cover procedure in respect of officers in the bank with effect from the 1st march 1983 on the lines followed by the government and the following guidelines are laid down for the purpose i the sealed cover procedure would be applicable in respect of promotion confirmation of the following categories of officers a officers against whom disciplinary proceedings have been contemplated provided there is a prima facie case against the officer b officers against whom disciplinary proceedings are in progress and c officer who have been placed under suspension it is the submission of the learned counsel for the appellant that the case of the respondent would be covered by sub clause a of clause i of para 3 as stated aforesaid as to what would be the consequence of the same is set out in sub clause iv thereafter which is reproduced hereinunder iv where the department proceedings have ended with the imposition of a minor penalty viz censure recoveries of pecuniary loss to the bank withholding of increments of pay and withholding of promotion the accommodation of the selection committee in favour of the employees kept in the sealed cover will not be given effect to but the case of the employees concerned may be considered at the time of next promotions immediately after the conclusion of the departmental proceedings if the employee is selected for promotion he may be promoted in the usual manner alongwith others if the penalty is that of ensure or recovery of pecuniary loss but in the case of employees who have been awarded the minor penality of withholding of increments or withholding of promotion promotion of the officers concerned can be made only after the expiry of the period of his penalty 3 learned counsel for the appellant thus contends that the respondent was imposed with a minor penalty of censure the sealed cover is not to be given effect to but his case may be considered at the time of next promotion immediately after the conclusion of the departmental proceedings and he may be promoted if otherwise eligible this is what appears to have been done since the respondent earned his promotion subsequently learned counsel for the appellant seeks to refer on two judicial pronouncements of this court for the proposition that even if there is a minor penalty of the nature of censure the recommendation of the dpc cannot be given effect to in state of m p anr vs i a qureshi1 it has been opined that once a minor penalty has been imposed on the employee in departmental proceedings the directions given in respect of the relevant circular would be applicable and the sealed cover recommendation of dpc cannot be opened and the recommendation of the dpc cannot be given effect to because the employee has not been fully exonerated when a minor penalty has been imposed the employee can only be considered for promotion on prospective basis from the date after the conclusion of the departmental proceeding similarly in union of india ors vs a n mohanan2 it has been opined that awarding of censure is a blame worthy factor and where even such a penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next dpc in the normal course 1 1998 9 scc 261 2 2007 5 scc 425 4 we have examined the aforesaid judicial pronouncements which do give rise to a conclusion that the censure having been imposed albeit the least of the minor penalty a recommendation of the sealed cover procedure cannot be given effect to for promotion this is also in conformity with what the relevant rule provide as under the state bank of india supervising staff service rules censure is mentioned as the first minor penalties in section 2 dealing with disciplinary and appeal in paragraph 49 the staff circular no 118 quoted aforesaid provides that once a disciplinary proceeding has been contemplated provided that the prima facie case against the officer which is apparent from the ultimate penalty imposed the sealed cover procedure should be adopted however where the said departmental proceedings end with the imposition of a minor penalty even like a censure the recommendations of the selection committee in favour of an employee kept in a sealed cover will not be given effect to and his case may be considered only in the next promotion immediately thereafter on the aforesaid principles applying to the facts of the present case a recommendation was made to the promoting authority in november 1984 but soon thereafter the disciplinary authority took a decision to initiate departmental action against the respondent on 28 1 1985 before the promoting authority could take a view on the recommendation of the interview committee a notice was issued calling upon the response of the respondent before issuance of a charge sheet in contemplation of the aforesaid disciplinary proceedings the promoting authority issued a select 5 list on 23 8 1985 keeping the result of the respondent in a sealed cover if the punishment would not have been ultimately imposed the question of giving effect to the result of the sealed cover procedure would have arisen however the charge sheet issued on 04 11 1985 resulted in a punishment of censure on 28 7 1987 and the departmental appeal against the same was dismissed making that aspect final the consequence was that the sealed cover was not given effect in terms of the aforesaid rules in view of the aforesaid position we are of the view that the impugned orders of learned single judge dated 30 5 2003 and the division bench dated 17 10 2008 cannot be sustained and are set aside and the appeal is allowed leaving parties to bear their own costs we may only add in the end that the respondent having earned his promotion albeit belatedly as stated aforesaid is a possible reason why he may not have joined the present proceedings j sanjay kishan kaul j m m sundresh new delhi 30th september 2021 6 item no 105 court no 6 section xi a s u p r e m e c o u r t o f i n d i a record of proceedings civil appeal no s 6821 2009 state bank of india ors appellant s versus c k karunakaran respondent s date 30 09 2021 this appeal was called on for hearing today coram hon ble mr justice sanjay kishan kaul hon ble mr justice m m sundresh for appellant s mr sanjay kapur aor ms megha karnwal adv mr v m kannan adv mrs shubhra kapur adv for respondent s upon hearing the counsel the court made the following o r d e r civil appeal is allowed in terms of the signed reportable order pending application s if any shall stand disposed of rashmi dhyani poonam vaid court master court master signed reportable order is placed on the file 7 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 6821 2009 state bank of india ors appellant s versus c k karunakaran respondent s o r d e r the respondent was employed with the appellant bank in the middle management grade scale ii and his promotion to middle management grade scale iii came up for consideration in november 1984 when he was interviewed by the interview committee which made its recommendation to the promoting authority in the meantime apparently the disciplinary authority took a decision to initiate departmental action against the respondent on 28 1 1985 his explanation was called for on 18 2 1985 and the charge sheet was issued on 04 11 1985 in view of the pendency of these disciplinary proceedings the promoting authority after considering the recommendations of the interview committee issued a select list on 23 8 1985 but the result of the respondent was kept in a sealed cover the charge sheet resulted in a punishment of censure to the respondent on 28 7 1987 and thus the promotion was not given effect to the order of the disciplinary authority was assailed by the respondent in departmental appeal and the same was dismissed on 13 12 1988 which attained finality 1 the grievance of the respondent was that despite the censure the sealed cover procedure having been adopted the same shall have been given effect to after the period of censure was over in this behalf the respondent filed an appeal before the appellate authority on 26 11 1990 but the same was rejected and thus writ petition being o p no 8947 1992 was filed before the high court of kerala at ernakulam directing the bank to consider the case of the respondent ignoring the sealed cover procedure the writ petition was allowed by the learned single judge in terms of order dated 30 5 2003 opining that the ex post facto decision of imposing censure could not be relied upon for denying the benefit of promotion and since the decision dated 28 1 1985 to take disciplinary action against the respondent was the only impediment standing in the way of the respondent he is entitled to the benefit of promotion the appeal was dismissed by a brief order dated 30 5 2003 by the division bench which has been assailed in the present appeal interim stay of the operation of the order was granted on 29 9 2009 while granting leave respondent from the inception has not entered appearance in the present proceedings we may note at the inception that of the impugned order itself records that the respondent was subsequently granted promotion thus the issue is only as to whether the respondent could be entitled to promotion from an earlier date the other factor which has been pointed out to us is that the respondent retired in the year 2003 and is stated to have received all retiral and pensionery benefits 2 learned counsel for the appellant sought to canvas before us that the appellant bank acted in accordance with its norms of sealed cover procedure as per staff circular no 118 exhibit p 2 the relevant part of the circular is as under 3 keeping in view the principles of natural justice and with a view to maintaining uniformity in this regard it has been decided to introduce the sealed cover procedure in respect of officers in the bank with effect from the 1st march 1983 on the lines followed by the government and the following guidelines are laid down for the purpose i the sealed cover procedure would be applicable in respect of promotion confirmation of the following categories of officers a officers against whom disciplinary proceedings have been contemplated provided there is a prima facie case against the officer b officers against whom disciplinary proceedings are in progress and c officer who have been placed under suspension it is the submission of the learned counsel for the appellant that the case of the respondent would be covered by sub clause a of clause i of para 3 as stated aforesaid as to what would be the consequence of the same is set out in sub clause iv thereafter which is reproduced hereinunder iv where the department proceedings have ended with the imposition of a minor penalty viz censure recoveries of pecuniary loss to the bank withholding of increments of pay and withholding of promotion the accommodation of the selection committee in favour of the employees kept in the sealed cover will not be given effect to but the case of the employees concerned may be considered at the time of next promotions immediately after the conclusion of the departmental proceedings if the employee is selected for promotion he may be promoted in the usual manner alongwith others if the penalty is that of ensure or recovery of pecuniary loss but in the case of employees who have been awarded the minor penality of withholding of increments or withholding of promotion promotion of the officers concerned can be made only after the expiry of the period of his penalty 3 learned counsel for the appellant thus contends that the respondent was imposed with a minor penalty of censure the sealed cover is not to be given effect to but his case may be considered at the time of next promotion immediately after the conclusion of the departmental proceedings and he may be promoted if otherwise eligible this is what appears to have been done since the respondent earned his promotion subsequently learned counsel for the appellant seeks to refer on two judicial pronouncements of this court for the proposition that even if there is a minor penalty of the nature of censure the recommendation of the dpc cannot be given effect to in state of m p anr vs i a qureshi1 it has been opined that once a minor penalty has been imposed on the employee in departmental proceedings the directions given in respect of the relevant circular would be applicable and the sealed cover recommendation of dpc cannot be opened and the recommendation of the dpc cannot be given effect to because the employee has not been fully exonerated when a minor penalty has been imposed the employee can only be considered for promotion on prospective basis from the date after the conclusion of the departmental proceeding similarly in union of india ors vs a n mohanan2 it has been opined that awarding of censure is a blame worthy factor and where even such a penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next dpc in the normal course 1 1998 9 scc 261 2 2007 5 scc 425 4 we have examined the aforesaid judicial pronouncements which do give rise to a conclusion that the censure having been imposed albeit the least of the minor penalty a recommendation of the sealed cover procedure cannot be given effect to for promotion this is also in conformity with what the relevant rule provide as under the state bank of india supervising staff service rules censure is mentioned as the first minor penalties in section 2 dealing with disciplinary and appeal in paragraph 49 the staff circular no 118 quoted aforesaid provides that once a disciplinary proceeding has been contemplated provided that the prima facie case against the officer which is apparent from the ultimate penalty imposed the sealed cover procedure should be adopted however where the said departmental proceedings end with the imposition of a minor penalty even like a censure the recommendations of the selection committee in favour of an employee kept in a sealed cover will not be given effect to and his case may be considered only in the next promotion immediately thereafter on the aforesaid principles applying to the facts of the present case a recommendation was made to the promoting authority in november 1984 but soon thereafter the disciplinary authority took a decision to initiate departmental action against the respondent on 28 1 1985 before the promoting authority could take a view on the recommendation of the interview committee a notice was issued calling upon the response of the respondent before issuance of a charge sheet in contemplation of the aforesaid disciplinary proceedings the promoting authority issued a select 5 list on 23 8 1985 keeping the result of the respondent in a sealed cover if the punishment would not have been ultimately imposed the question of giving effect to the result of the sealed cover procedure would have arisen however the charge sheet issued on 04 11 1985 resulted in a punishment of censure on 28 7 1987 and the departmental appeal against the same was dismissed making that aspect final the consequence was that the sealed cover was not given effect in terms of the aforesaid rules in view of the aforesaid position we are of the view that the impugned orders of learned single judge dated 30 5 2003 and the division bench dated 17 10 2008 cannot be sustained and are set aside and the appeal is allowed leaving parties to bear their own costs we may only add in the end that the respondent having earned his promotion albeit belatedly as stated aforesaid is a possible reason why he may not have joined the present proceedings j sanjay kishan kaul j m m sundresh new delhi 30th september 2021 6 item no 105 court no 6 section xi a s u p r e m e c o u r t o f i n d i a record of proceedings civil appeal no s 6821 2009 state bank of india ors appellant s versus c k karunakaran respondent s date 30 09 2021 this appeal was called on for hearing today coram hon ble mr justice sanjay kishan kaul hon ble mr justice m m sundresh for appellant s mr sanjay kapur aor ms megha karnwal adv mr v m kannan adv mrs shubhra kapur adv for respondent s upon hearing the counsel the court made the following o r d e r civil appeal is allowed in terms of the signed reportable order pending application s if any shall stand disposed of rashmi dhyani poonam vaid court master court master signed reportable order is placed on the file 7 2441 2010_c a no 006124 006124 2011 the trial court the trial court the first appellate court purushottam 2021 03 02 6124 of 2011 hazari v purushottam singh v natthu wakf v anjuman kumar v yusuf matha v r in spite of service no one has appeared on behalf of the respondents heard learned counsel for the appellants taking into consideration the non appearance of the counsel for the respondents and to know the exact position of the disputed property as well as whether any compromise has taken place between the parties we grant two weeks to the counsel for the appellants to do the needful list the matter immediately after two weeks 2 even today when the matter was called out nobody appeared for the respondents in spite of service of notice 1 3 heard the learned counsel appearing for the appellants 4 in response to our earlier query it is represented by the learned counsel for the appellants that no settlement has taken place between the parties and according to her the parties intend to continue with the litigation 5 taking into account the long pendency of the present appeal before this court and the fact that despite service of notice the respondents have not entered appearance from the very beginning as per the office reports we are of the opinion that we should dispose of the matter with the assistance of the counsel for the appellants 6 the facts of the case necessary for the disposal of the present appeal are as follows the narayan sitaramji badwaik since deceased and now represented through his legal representatives and who shall hereinafter for the sake of convenience be referred to as the appellant had filed a suit for possession of the property in dispute on the basis of a sale deed dated 26 09 1978 for rs 10 000 from some of the respondents on the other hand the respondents contend that no such sale took place and in fact the document executed was only collateral for a loan extended by the appellant to respondents the appellant sought possession of the property on 05 09 1987 and subsequently instituted the present suit on 07 03 1989 the trial court after looking into the evidence placed on record dismissed the suit of the appellant vide judgment dated 21 09 1995 on appeal the district judge reversed the findings of the trial court and decreed the suit in favour of the 2 appellant vide judgment dated 05 08 1997 aggrieved by the judgment of the first appellate court some of the respondents filed a second appeal before the high court wherein the high court upheld the findings of the trial court and allowed the second appeal vide the impugned judgment thereby dismissing the suit of the appellant 7 we have carefully perused the impugned judgment by the high court with the assistance of the counsel for the appellant 8 the high court vide the impugned judgment noted that the first appellate court had considered irrelevant material and had erred in appreciating the legal issue involved the high court held as follows 8 i may mention that it is neither party s case that the transaction is void or voidable it is defendants simple case that although they had executed a sale deed it was nominal and was not to be acted upon as sale deed was executed as a collateral security one does not understand why the learned joint district judge considered the question as to whether the transaction between the plaintiff and the defendants is void or voidable the contract becomes void when it is opposed to public policy and voidable when it is brought about by fraud undue influence coercion or fraud as stated earlier it is neither party s case that the document was brought about by fraud undue influence coercion or misrepresentation there was therefore no question of considering this aspect at all it seems that the learned district judge instead of considering the provisions of section 91 and 92 of the evidence act considered a totally irrelevant aspect 3 emphasis supplied 9 however after highlighting the legal infirmities of the judgment of the first appellate court and answering the substantial question of law framed in favour of the respondents it appears that the high court did not note that the first appellate court due to its erroneous approach had failed to consider the evidence in the correct light in such a circumstance it would have been appropriate for the high court to remand the matter to the first appellate court to determine the factual issues in light of the legal point as decided by it or should have itself taken a decision on the facts under section 103 of the civil procedure code 10 it is a settled position of law that a second appeal under section 100 of the code of civil procedure lies only on a substantial question of law refer santosh hazari v purushottam tiwari deceased by lrs 2001 3 scc 179 however this does not mean that the high court cannot in any circumstance decide findings of fact or interfere with those arrived at by the courts below in a second appeal in fact section 103 of the code of civil procedure explicitly provides for circumstances under which the high court may do so section 103 of the code of civil procedure is as follows section 103 power of high court to determine issue of fact in any second appeal the high court may if the evidence on the record is sufficient determine any issue necessary for the disposal of the appeal 4 a which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court or b which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100 11 a bare perusal of this section clearly indicates that it provides for the high court to decide an issue of fact provided there is sufficient evidence on record before it in two circumstances first when an issue necessary for the disposal of the appeal has not been determined by the lower appellate court or by both the courts below and second when an issue of fact has been wrongly determined by the court s below by virtue of the decision on the question of law under section 100 of the code of civil procedure this court in the case of municipal committee hoshiarpur v punjab state electricity board 2010 13 scc 216 held as follows 26 thus it is evident that section 103 cpc is not an exception to section 100 cpc nor is it meant to supplant it rather it is to serve the same purpose even while pressing section 103 cpc in service the high court has to record a finding that it had to exercise such power because it found that finding s of fact recorded by the court s below stood vitiated because of perversity more so such power can be exercised only in exceptional circumstances and with circumspection where the core question involved in the case has not been decided by the court s below 27 there is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings 5 of fact recorded by the courts below stood vitiated by non consideration of relevant evidence or by showing an erroneous approach to the matter i e that the findings of fact are found to be perverse but the high court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts vide jagdish singh v natthu singh 1992 1 scc 647 karnataka board of wakf v anjuman e ismail madris un niswan 1999 6 scc 343 and dinesh kumar v yusuf ali 2010 12 scc 740 28 if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse then the finding is rendered infirm in the eye of the law if the findings of the court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings then the findings may be said to be perverse further if the findings are either ipse dixit of the court or based on conjecture and surmises the judgment suffers from the additional infirmity of non application of mind and thus stands vitiated vide bharatha matha v r vijaya renganathan 2010 11 scc 483 emphasis supplied 12 with respect to the present case it is clear from the observations passed by the high court in the impugned judgment that the first appellate court approached the matter incorrectly as 6 such the high court ought to have either remanded the matter or exercised its powers under section 103 code of civil procedure and decided the issues of fact instead after negativing the observations and holding of the first appellate court the high court mechanically upheld the decision rendered by the trial court in the following terms 11 this decision makes it clear that a party has a right to show that the document was not intended to be acted upon and what is written in it is of no consequence the learned judge of the trial court has rightly held that the defendants had actually shown that the sale deeds were nominal and they were not to be acted upon and therefore the plaintiff was not entitled to possession the learned district judge fell in error in setting aside the finding of the trial court that the sale deed in favour of the plaintiff was a nominal on the ground that the defendant ought to have got the sale deeds set aside the learned civil judge has rightly considered the evidence and has held the sale deed to be nominal and having been executed by way of collateral security the finding of the learned district judge that the suit was not maintainable unless sale deed was got set aside by defendants therefore was not proper the substantial question of law is answered accordingly the appeal is therefore allowed and judgment and decree passed by the first appellate court is set aside and that of the trial court restored 13 a perusal of the above clearly indicates that the high court decided the appeal without any assessment of the evidence on record in a single paragraph in the circumstances highlighted we are of the opinion that this was not appropriate 7 14 in view of the above we are of the considered view that the impugned order of the high court is liable to be set aside and the matter be remanded 15 we accordingly set aside the order of the high court and remand the matter to the said court for fresh consideration of the appeal on facts and law if necessary we also leave it open to the high court to modify the question of law framed or frame additional questions of law after giving an opportunity to the parties it is clarified that we have not made any observations as to the merits of the case or the correctness of holding of the high court on the legal issue 16 taking into consideration the long pendency of the litigation we request the high court to dispose of the matter within a period of six months from the date of communication of this order 17 the appeal is disposed of in the afore stated terms j n v ramana j surya kant j aniruddha bose new delhi february 17 2021 8 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 6124 of 2011 narayan sitaramji badwaik appellants dead through lrs versus bisaram and others respondents j u d g m e n t n v ramana j 1 when the matter came up last time on 03 02 2021 this court passed the following order in spite of service no one has appeared on behalf of the respondents heard learned counsel for the appellants taking into consideration the non appearance of the counsel for the respondents and to know the exact position of the disputed property as well as whether any compromise has taken place between the parties we grant two weeks to the counsel for the appellants to do the needful list the matter immediately after two weeks 2 even today when the matter was called out nobody appeared for the respondents in spite of service of notice 1 3 heard the learned counsel appearing for the appellants 4 in response to our earlier query it is represented by the learned counsel for the appellants that no settlement has taken place between the parties and according to her the parties intend to continue with the litigation 5 taking into account the long pendency of the present appeal before this court and the fact that despite service of notice the respondents have not entered appearance from the very beginning as per the office reports we are of the opinion that we should dispose of the matter with the assistance of the counsel for the appellants 6 the facts of the case necessary for the disposal of the present appeal are as follows the narayan sitaramji badwaik since deceased and now represented through his legal representatives and who shall hereinafter for the sake of convenience be referred to as the appellant had filed a suit for possession of the property in dispute on the basis of a sale deed dated 26 09 1978 for rs 10 000 from some of the respondents on the other hand the respondents contend that no such sale took place and in fact the document executed was only collateral for a loan extended by the appellant to respondents the appellant sought possession of the property on 05 09 1987 and subsequently instituted the present suit on 07 03 1989 the trial court after looking into the evidence placed on record dismissed the suit of the appellant vide judgment dated 21 09 1995 on appeal the district judge reversed the findings of the trial court and decreed the suit in favour of the 2 appellant vide judgment dated 05 08 1997 aggrieved by the judgment of the first appellate court some of the respondents filed a second appeal before the high court wherein the high court upheld the findings of the trial court and allowed the second appeal vide the impugned judgment thereby dismissing the suit of the appellant 7 we have carefully perused the impugned judgment by the high court with the assistance of the counsel for the appellant 8 the high court vide the impugned judgment noted that the first appellate court had considered irrelevant material and had erred in appreciating the legal issue involved the high court held as follows 8 i may mention that it is neither party s case that the transaction is void or voidable it is defendants simple case that although they had executed a sale deed it was nominal and was not to be acted upon as sale deed was executed as a collateral security one does not understand why the learned joint district judge considered the question as to whether the transaction between the plaintiff and the defendants is void or voidable the contract becomes void when it is opposed to public policy and voidable when it is brought about by fraud undue influence coercion or fraud as stated earlier it is neither party s case that the document was brought about by fraud undue influence coercion or misrepresentation there was therefore no question of considering this aspect at all it seems that the learned district judge instead of considering the provisions of section 91 and 92 of the evidence act considered a totally irrelevant aspect 3 emphasis supplied 9 however after highlighting the legal infirmities of the judgment of the first appellate court and answering the substantial question of law framed in favour of the respondents it appears that the high court did not note that the first appellate court due to its erroneous approach had failed to consider the evidence in the correct light in such a circumstance it would have been appropriate for the high court to remand the matter to the first appellate court to determine the factual issues in light of the legal point as decided by it or should have itself taken a decision on the facts under section 103 of the civil procedure code 10 it is a settled position of law that a second appeal under section 100 of the code of civil procedure lies only on a substantial question of law refer santosh hazari v purushottam tiwari deceased by lrs 2001 3 scc 179 however this does not mean that the high court cannot in any circumstance decide findings of fact or interfere with those arrived at by the courts below in a second appeal in fact section 103 of the code of civil procedure explicitly provides for circumstances under which the high court may do so section 103 of the code of civil procedure is as follows section 103 power of high court to determine issue of fact in any second appeal the high court may if the evidence on the record is sufficient determine any issue necessary for the disposal of the appeal 4 a which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court or b which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100 11 a bare perusal of this section clearly indicates that it provides for the high court to decide an issue of fact provided there is sufficient evidence on record before it in two circumstances first when an issue necessary for the disposal of the appeal has not been determined by the lower appellate court or by both the courts below and second when an issue of fact has been wrongly determined by the court s below by virtue of the decision on the question of law under section 100 of the code of civil procedure this court in the case of municipal committee hoshiarpur v punjab state electricity board 2010 13 scc 216 held as follows 26 thus it is evident that section 103 cpc is not an exception to section 100 cpc nor is it meant to supplant it rather it is to serve the same purpose even while pressing section 103 cpc in service the high court has to record a finding that it had to exercise such power because it found that finding s of fact recorded by the court s below stood vitiated because of perversity more so such power can be exercised only in exceptional circumstances and with circumspection where the core question involved in the case has not been decided by the court s below 27 there is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings 5 of fact recorded by the courts below stood vitiated by non consideration of relevant evidence or by showing an erroneous approach to the matter i e that the findings of fact are found to be perverse but the high court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts vide jagdish singh v natthu singh 1992 1 scc 647 karnataka board of wakf v anjuman e ismail madris un niswan 1999 6 scc 343 and dinesh kumar v yusuf ali 2010 12 scc 740 28 if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse then the finding is rendered infirm in the eye of the law if the findings of the court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings then the findings may be said to be perverse further if the findings are either ipse dixit of the court or based on conjecture and surmises the judgment suffers from the additional infirmity of non application of mind and thus stands vitiated vide bharatha matha v r vijaya renganathan 2010 11 scc 483 emphasis supplied 12 with respect to the present case it is clear from the observations passed by the high court in the impugned judgment that the first appellate court approached the matter incorrectly as 6 such the high court ought to have either remanded the matter or exercised its powers under section 103 code of civil procedure and decided the issues of fact instead after negativing the observations and holding of the first appellate court the high court mechanically upheld the decision rendered by the trial court in the following terms 11 this decision makes it clear that a party has a right to show that the document was not intended to be acted upon and what is written in it is of no consequence the learned judge of the trial court has rightly held that the defendants had actually shown that the sale deeds were nominal and they were not to be acted upon and therefore the plaintiff was not entitled to possession the learned district judge fell in error in setting aside the finding of the trial court that the sale deed in favour of the plaintiff was a nominal on the ground that the defendant ought to have got the sale deeds set aside the learned civil judge has rightly considered the evidence and has held the sale deed to be nominal and having been executed by way of collateral security the finding of the learned district judge that the suit was not maintainable unless sale deed was got set aside by defendants therefore was not proper the substantial question of law is answered accordingly the appeal is therefore allowed and judgment and decree passed by the first appellate court is set aside and that of the trial court restored 13 a perusal of the above clearly indicates that the high court decided the appeal without any assessment of the evidence on record in a single paragraph in the circumstances highlighted we are of the opinion that this was not appropriate 7 14 in view of the above we are of the considered view that the impugned order of the high court is liable to be set aside and the matter be remanded 15 we accordingly set aside the order of the high court and remand the matter to the said court for fresh consideration of the appeal on facts and law if necessary we also leave it open to the high court to modify the question of law framed or frame additional questions of law after giving an opportunity to the parties it is clarified that we have not made any observations as to the merits of the case or the correctness of holding of the high court on the legal issue 16 taking into consideration the long pendency of the litigation we request the high court to dispose of the matter within a period of six months from the date of communication of this order 17 the appeal is disposed of in the afore stated terms j n v ramana j surya kant j aniruddha bose new delhi february 17 2021 8 2520 2019_c a no 002275 2019 versus union of india ors respondent s lrs medical board alc the invaliding medical board 2021 12 17 giving rise to the present appeal are as 2552 of 2022 2275 of 2019 another v brojo in the supreme court of india civil appellate jurisdiction miscellaneous application no 433 2022 application for substitution of lrs of deceased appellant in civil appeal no 2275 2019 with interlocutory application no 22552 of 2022 application for correction in judgment dated 17 12 2021 pani ram deceased thr lrs applicant s appellant versus union of india ors respondent s o r d e r application for substitution of lrs of deceased appellant is allowed cause title be amended accordingly application for replacing the name of the advocate mr siddhartha iyer to mr lalit kumar in para 9 of the judgment dated 17 12 2021 passed in the above appeal is allowed miscellaneous application and interlocutory application s stand allowed accordingly j l nageswara rao j b r gavai new delhi 7th march 2022 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 2275 of 2019 pani ram appellant versus union of india and ors respondents j u d g m e n t b r gavai j 1 the appeal challenges the judgment and order dated 10th october 2018 passed by the armed forces tribunal regional bench lucknow hereinafter referred to as aft vide which the o a no 149 of 2018 filed by the appellant for grant of disability pension came to be dismissed the appellant also challenges the order dated 31st october 2018 passed in m a no 1839 of 2018 in o a no 149 of 2018 vide which though the application for leave to appeal was allowed but the aft framed a different question of law 2 2 the facts in brief giving rise to the present appeal are as under after serving for about 25 years in infantry of the regular army the appellant got re enrolled in the territorial army as a full time soldier on 1st august 2007 while serving in territorial army on 5th april 2009 the appellant was granted 10 days part of annual leave from 15th april 2009 to 24th april 2009 to proceed to his home which was at a distance of few kilometers from the unit where he was posted after availing the said leave when the appellant was coming back on his scooter to rejoin his duty on 24th april 2009 he met with a serious accident initially the appellant was admitted to the district hospital pithoragarh from where he was shifted to the 161 military hospital at pithoragarh on 25th april 2009 the appellant was evacuated by helicopter to the base hospital at lucknow where his right leg was amputated up to the knee thereafter he was shifted to the artificial limb centre hereinafter referred to as alc at pune on 14th september 2009 he was discharged from alc and was granted 28 days sick leave with the 3 instruction to report back to the alc after the expiry of sick leave he was re admitted to alc on 11th october 2009 on 21st october 2009 the medical board was held at alc which assessed the appellant s disability to be 80 however it could not give any opinion about the attributability aspect of the injury on 07th november 2009 the appellant was discharged from alc with instruction to report back to his unit 3 as per regulation no 520 of the regulations for the army 1987 a court of inquiry hereinafter referred to as coi was held from 13th november 2009 onwards to investigate into the circumstances under which the appellant had sustained injury the coi found that the injury sustained by the appellant was attributable to military service and it was not due to his own negligence the said finding of coi was duly approved by the station commander respondent no 3 on 11th january 2010 on 25th october 2010 a re categorization medical board was held at alc which maintained appellant s disability at 80 and declared it as attributable to military service subsequently on the 4 basis of the opinion of the invaliding medical board hereinafter referred to as imb on 1st january 2012 the appellant was invalided out of service with 80 disability which was attributable to military service 4 the appellant therefore approached aft for grant of disability pension as is applicable to the personnel of regular army in accordance with regulation no 292 of the pension regulations for the army 1961 the claim of the appellant was resisted by the respondents on the ground that the appellant after discharging from mechanized infantry as a pensioner was re enrolled in 130 infantry battalion territorial army ecological task force kumaon on 1st august 2007 as an ex serviceman esm the claim of the appellant has been denied by the respondents on the ground that the appellant was not entitled to any pensionary benefits in view of the letter of the government of india ministry of defence dated 31st march 2008 5 the aft though held that the injury sustained by the appellant which resulted into 80 disability was found by the competent authority to be aggravated and attributable to 5 the military service rejected the claim of the appellant on the ground that a separate scheme and service conditions have been created for the members of ecological task force hereinafter referred to as etf which was accepted by the appellant and as such he was not entitled to disability pension 6 the appellant thereafter filed m a no 1839 of 2018 in o a no 149 of 2018 for grant of leave to appeal against the judgment and order dated 10th october 2018 wherein the appellant had framed the following question of law of general public importance whether the terms and conditions of service of a member of the territorial army ta during the period of his embodiment with the t a will be governed by the statutory rules which provide for grant of disability pension or by the departmental orders which deny the grant of the disability pension to the members of a particular unit of the t a to which such individual belongs 7 the aft vide order dated 31st october 2018 though allowed the application for grant of leave to appeal framed a different question of law as under whether the members of ecological task force of territorial army are entitled to pensionary benefits 6 at par with the members of regular army in spite of the aforementioned mod letter dated 31 03 2008 whereby pensionary benefits have been denied 8 the said order dated 31st october 2018 passed by aft is also a subject matter of challenge in the present appeal 9 we have heard shri siddhartha iyer learned counsel appearing on behalf of the appellant and shri vikramjit banerjee learned additional solicitor general appearing on behalf of the respondent union of india 10 it is the specific case of respondent union of india that separate terms and conditions were provided by it vide communication dated 31st march 2008 which provides that the members of etf would not be entitled for disability pension vide the said communication the government of india has communicated to the chief of army staff the sanction of the president of india for raising two additional companies for 130 infantry battalion territorial army ecological under rule 33 of territorial army act rules 1948 11 the respondents rely on clause iv of sub para d of para 1 of the said communication dated 31st march 2008 7 iv pension entitlement of territorial army personnel earned for the earlier regular army service will remain untouched and will be ignored in fixing their pay and allowances 12 the respondents also rely on a document titled certificate dated 30th august 2007 signed by the appellant wherein under condition f it is stated thus f that i will not be getting any enhance pension for having been enrolled in this force 13 it will be relevant to refer to sub section 1 of section 9 of the territorial army act 1948 sec 9 application of the army act 1950 1 every officer when doing duty as such officer and every enrolled person when called out or embodied or attached to the regular army shall subject to such adaptations and modifications as may be made therein by the central government by notification in the official gazette be subject to the provisions of the army act 1950 and the rules or regulations made thereunder in the same manner and to the same extent as if such officer or enrolled person held the same rank in the regular army as he holds for the time being in the territorial army 14 it could thus be seen that every such officer or enrolled person in territorial army when holds the rank shall be subject to the provisions of army act 1950 and the rules or 8 regulations made thereunder equivalent to the same rank in the regular army 15 chapter 5 of the pension regulations for the army 1961 deals with territorial army the regulation no 292 of the pension regulations for the army 1961 read thus 292 the grant of pensionary awards to the members of the territorial army shall be governed by the same general regulations as are applicable to the corresponding personnel of the army except where they are inconsistent with the provisions of regulations in this chapter 16 it could thus be seen that the grant of pensionary awards to the members of the territorial army shall be governed by the same rules and regulations as are applicable to the corresponding persons of the army except where they are inconsistent with the provisions of regulations in the said chapter 17 chapter 3 of the pension regulations for the army 1961 deals with disability pensionary awards in which regulation no 173 reads thus 173 primary conditions for the grant of disability pension 9 unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non battle casualty and is assessed at 20 per cent or over 18 the perusal thereof will reveal that an individual who is invalided out of service on account of disability which is attributable or aggravated by military service in non battle casualty and is assessed 20 or more would be entitled to disability pension the respondents are not in a position to point out any rules or regulations which can be said to be inconsistent with regulation no 292 or 173 neither has any other regulation been pointed out which deals with the terms and conditions of service of etf 19 the communication of the union of india dated 31st march 2008 vide which the president of india has granted sanction itself reveals that the sanction is for raising two additional companies for 130 infantry battalion territorial army ecological 10 20 it is thus clear that the etf is established as an additional company for 130 infantry battalion of territorial army it is not in dispute that the other officers or enrolled persons working in the territorial army are entitled to disability pension under regulation no 173 read with regulation no 292 of pension regulations for the army 1961 when the appellant is enrolled as a member of etf which is a company for 130 infantry battalion territorial army we see no reason as to why the appellant was denied the disability pension specifically so when the medical board and coi have found that the injury sustained by the appellant was attributable to the military service and it was not due to his own negligence 21 in case of conflict between what is stated in internal communication between the two organs of the state and the statutory rules and regulations it is needless to state that the statutory rules and regulations would prevail in that view of the matter we find that aft was not justified in rejecting the claim of the appellant 11 22 the respondents have heavily relied on the document dated 30th august 2007 titled certificate no doubt that the said document is signed by the appellant wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in this force firstly we find that the said document deals with enhanced pension and not disability pension as already discussed hereinabove a conjoint reading of section 9 of the territorial army act 1948 and regulation nos 292 and 173 of the pension regulations for the army 1961 would show that a member of the territorial army would be entitled to disability pension in any case in this respect even accepting that the appellant has signed such a document it will be relevant to refer to the following observations of this court in the case of central inland water transport corporation limited and another v brojo nath ganguly and another1 89 we have a constitution for our country our judges are bound by their oath to uphold the constitution and the laws the constitution was enacted to secure to all the citizens of this country social and economic justice article 14 of the constitution guarantees to all persons equality 1 1986 3 scc 156 12 before the law and the equal protection of the laws the principle deducible from the above discussions on this part of the case is in consonance with right and reason intended to secure social and economic justice and conforms to the mandate of the great equality clause in article 14 this principle is that the courts will not enforce and will when called upon to do so strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining power it is difficult to give an exhaustive list of all bargains of this type no court can visualize the different situations which can arise in the affairs of men one can only attempt to give some illustrations for instance the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties it will apply where the inequality is the result of circumstances whether of the creation of the parties or not it will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them it will also apply where a man has no choice or rather no meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract however unfair unreasonable and unconscionable a clause in that contract or form or rules may be this principle however will not apply where the bargaining power of the contracting parties is equal or almost equal this principle may not apply where both parties are businessmen and the contract is a commercial transaction in today s complex world of giant corporations with their vast infrastructural organizations and with the state through its instrumentalities and agencies entering into almost every branch of industry and commerce 13 there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power these cases can neither be enumerated nor fully illustrated the court must judge each case on its own facts and circumstances 23 as held by this court a right to equality guaranteed under article 14 of the constitution of india would also apply to a man who has no choice or rather no meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract however unfair unreasonable and unconscionable a clause in that contract or form or rules may be we find that the said observations rightly apply to the facts of the present case can it be said that the mighty union of india and an ordinary soldier who having fought for the country and retired from regular army seeking re employment in the territorial army have an equal bargaining power we are therefore of the considered view that the reliance placed on the said document would also be of no assistance to the case of the respondents 14 24 the present appeal is therefore allowed and the judgment and order dated 10th october 2018 passed by aft in o a no 149 of 2018 is quashed and set aside the question of law framed by aft in its order dated 31st october 2018 already stands answered in view of our finding given in para 21 25 the respondents herein are directed to grant disability pension to the appellant in accordance with the rules and regulations as are applicable to the members of the territorial army with effect from 1st january 2012 the respondents are directed to clear arrears from 1st january 2012 within a period of three months from the date of this judgment with interest at the rate of 9 per annum 26 the appeal is allowed in the above terms all pending applications shall stand disposed of no order as to costs j l nageswara rao j b r gavai new delhi december 17 2021 15 in the supreme court of india civil appellate jurisdiction miscellaneous application no 433 2022 application for substitution of lrs of deceased appellant in civil appeal no 2275 2019 with interlocutory application no 22552 of 2022 application for correction in judgment dated 17 12 2021 pani ram deceased thr lrs applicant s appellant versus union of india ors respondent s o r d e r application for substitution of lrs of deceased appellant is allowed cause title be amended accordingly application for replacing the name of the advocate mr siddhartha iyer to mr lalit kumar in para 9 of the judgment dated 17 12 2021 passed in the above appeal is allowed miscellaneous application and interlocutory application s stand allowed accordingly j l nageswara rao j b r gavai new delhi 7th march 2022 1 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 2275 of 2019 pani ram appellant versus union of india and ors respondents j u d g m e n t b r gavai j 1 the appeal challenges the judgment and order dated 10th october 2018 passed by the armed forces tribunal regional bench lucknow hereinafter referred to as aft vide which the o a no 149 of 2018 filed by the appellant for grant of disability pension came to be dismissed the appellant also challenges the order dated 31st october 2018 passed in m a no 1839 of 2018 in o a no 149 of 2018 vide which though the application for leave to appeal was allowed but the aft framed a different question of law 2 2 the facts in brief giving rise to the present appeal are as under after serving for about 25 years in infantry of the regular army the appellant got re enrolled in the territorial army as a full time soldier on 1st august 2007 while serving in territorial army on 5th april 2009 the appellant was granted 10 days part of annual leave from 15th april 2009 to 24th april 2009 to proceed to his home which was at a distance of few kilometers from the unit where he was posted after availing the said leave when the appellant was coming back on his scooter to rejoin his duty on 24th april 2009 he met with a serious accident initially the appellant was admitted to the district hospital pithoragarh from where he was shifted to the 161 military hospital at pithoragarh on 25th april 2009 the appellant was evacuated by helicopter to the base hospital at lucknow where his right leg was amputated up to the knee thereafter he was shifted to the artificial limb centre hereinafter referred to as alc at pune on 14th september 2009 he was discharged from alc and was granted 28 days sick leave with the 3 instruction to report back to the alc after the expiry of sick leave he was re admitted to alc on 11th october 2009 on 21st october 2009 the medical board was held at alc which assessed the appellant s disability to be 80 however it could not give any opinion about the attributability aspect of the injury on 07th november 2009 the appellant was discharged from alc with instruction to report back to his unit 3 as per regulation no 520 of the regulations for the army 1987 a court of inquiry hereinafter referred to as coi was held from 13th november 2009 onwards to investigate into the circumstances under which the appellant had sustained injury the coi found that the injury sustained by the appellant was attributable to military service and it was not due to his own negligence the said finding of coi was duly approved by the station commander respondent no 3 on 11th january 2010 on 25th october 2010 a re categorization medical board was held at alc which maintained appellant s disability at 80 and declared it as attributable to military service subsequently on the 4 basis of the opinion of the invaliding medical board hereinafter referred to as imb on 1st january 2012 the appellant was invalided out of service with 80 disability which was attributable to military service 4 the appellant therefore approached aft for grant of disability pension as is applicable to the personnel of regular army in accordance with regulation no 292 of the pension regulations for the army 1961 the claim of the appellant was resisted by the respondents on the ground that the appellant after discharging from mechanized infantry as a pensioner was re enrolled in 130 infantry battalion territorial army ecological task force kumaon on 1st august 2007 as an ex serviceman esm the claim of the appellant has been denied by the respondents on the ground that the appellant was not entitled to any pensionary benefits in view of the letter of the government of india ministry of defence dated 31st march 2008 5 the aft though held that the injury sustained by the appellant which resulted into 80 disability was found by the competent authority to be aggravated and attributable to 5 the military service rejected the claim of the appellant on the ground that a separate scheme and service conditions have been created for the members of ecological task force hereinafter referred to as etf which was accepted by the appellant and as such he was not entitled to disability pension 6 the appellant thereafter filed m a no 1839 of 2018 in o a no 149 of 2018 for grant of leave to appeal against the judgment and order dated 10th october 2018 wherein the appellant had framed the following question of law of general public importance whether the terms and conditions of service of a member of the territorial army ta during the period of his embodiment with the t a will be governed by the statutory rules which provide for grant of disability pension or by the departmental orders which deny the grant of the disability pension to the members of a particular unit of the t a to which such individual belongs 7 the aft vide order dated 31st october 2018 though allowed the application for grant of leave to appeal framed a different question of law as under whether the members of ecological task force of territorial army are entitled to pensionary benefits 6 at par with the members of regular army in spite of the aforementioned mod letter dated 31 03 2008 whereby pensionary benefits have been denied 8 the said order dated 31st october 2018 passed by aft is also a subject matter of challenge in the present appeal 9 we have heard shri siddhartha iyer learned counsel appearing on behalf of the appellant and shri vikramjit banerjee learned additional solicitor general appearing on behalf of the respondent union of india 10 it is the specific case of respondent union of india that separate terms and conditions were provided by it vide communication dated 31st march 2008 which provides that the members of etf would not be entitled for disability pension vide the said communication the government of india has communicated to the chief of army staff the sanction of the president of india for raising two additional companies for 130 infantry battalion territorial army ecological under rule 33 of territorial army act rules 1948 11 the respondents rely on clause iv of sub para d of para 1 of the said communication dated 31st march 2008 7 iv pension entitlement of territorial army personnel earned for the earlier regular army service will remain untouched and will be ignored in fixing their pay and allowances 12 the respondents also rely on a document titled certificate dated 30th august 2007 signed by the appellant wherein under condition f it is stated thus f that i will not be getting any enhance pension for having been enrolled in this force 13 it will be relevant to refer to sub section 1 of section 9 of the territorial army act 1948 sec 9 application of the army act 1950 1 every officer when doing duty as such officer and every enrolled person when called out or embodied or attached to the regular army shall subject to such adaptations and modifications as may be made therein by the central government by notification in the official gazette be subject to the provisions of the army act 1950 and the rules or regulations made thereunder in the same manner and to the same extent as if such officer or enrolled person held the same rank in the regular army as he holds for the time being in the territorial army 14 it could thus be seen that every such officer or enrolled person in territorial army when holds the rank shall be subject to the provisions of army act 1950 and the rules or 8 regulations made thereunder equivalent to the same rank in the regular army 15 chapter 5 of the pension regulations for the army 1961 deals with territorial army the regulation no 292 of the pension regulations for the army 1961 read thus 292 the grant of pensionary awards to the members of the territorial army shall be governed by the same general regulations as are applicable to the corresponding personnel of the army except where they are inconsistent with the provisions of regulations in this chapter 16 it could thus be seen that the grant of pensionary awards to the members of the territorial army shall be governed by the same rules and regulations as are applicable to the corresponding persons of the army except where they are inconsistent with the provisions of regulations in the said chapter 17 chapter 3 of the pension regulations for the army 1961 deals with disability pensionary awards in which regulation no 173 reads thus 173 primary conditions for the grant of disability pension 9 unless otherwise specifically provided a disability pension consisting of service element and disability element may be granted to an individual who is invalided out of service on account of a disability which is attributable to or aggravated by military service in non battle casualty and is assessed at 20 per cent or over 18 the perusal thereof will reveal that an individual who is invalided out of service on account of disability which is attributable or aggravated by military service in non battle casualty and is assessed 20 or more would be entitled to disability pension the respondents are not in a position to point out any rules or regulations which can be said to be inconsistent with regulation no 292 or 173 neither has any other regulation been pointed out which deals with the terms and conditions of service of etf 19 the communication of the union of india dated 31st march 2008 vide which the president of india has granted sanction itself reveals that the sanction is for raising two additional companies for 130 infantry battalion territorial army ecological 10 20 it is thus clear that the etf is established as an additional company for 130 infantry battalion of territorial army it is not in dispute that the other officers or enrolled persons working in the territorial army are entitled to disability pension under regulation no 173 read with regulation no 292 of pension regulations for the army 1961 when the appellant is enrolled as a member of etf which is a company for 130 infantry battalion territorial army we see no reason as to why the appellant was denied the disability pension specifically so when the medical board and coi have found that the injury sustained by the appellant was attributable to the military service and it was not due to his own negligence 21 in case of conflict between what is stated in internal communication between the two organs of the state and the statutory rules and regulations it is needless to state that the statutory rules and regulations would prevail in that view of the matter we find that aft was not justified in rejecting the claim of the appellant 11 22 the respondents have heavily relied on the document dated 30th august 2007 titled certificate no doubt that the said document is signed by the appellant wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in this force firstly we find that the said document deals with enhanced pension and not disability pension as already discussed hereinabove a conjoint reading of section 9 of the territorial army act 1948 and regulation nos 292 and 173 of the pension regulations for the army 1961 would show that a member of the territorial army would be entitled to disability pension in any case in this respect even accepting that the appellant has signed such a document it will be relevant to refer to the following observations of this court in the case of central inland water transport corporation limited and another v brojo nath ganguly and another1 89 we have a constitution for our country our judges are bound by their oath to uphold the constitution and the laws the constitution was enacted to secure to all the citizens of this country social and economic justice article 14 of the constitution guarantees to all persons equality 1 1986 3 scc 156 12 before the law and the equal protection of the laws the principle deducible from the above discussions on this part of the case is in consonance with right and reason intended to secure social and economic justice and conforms to the mandate of the great equality clause in article 14 this principle is that the courts will not enforce and will when called upon to do so strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining power it is difficult to give an exhaustive list of all bargains of this type no court can visualize the different situations which can arise in the affairs of men one can only attempt to give some illustrations for instance the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties it will apply where the inequality is the result of circumstances whether of the creation of the parties or not it will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them it will also apply where a man has no choice or rather no meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract however unfair unreasonable and unconscionable a clause in that contract or form or rules may be this principle however will not apply where the bargaining power of the contracting parties is equal or almost equal this principle may not apply where both parties are businessmen and the contract is a commercial transaction in today s complex world of giant corporations with their vast infrastructural organizations and with the state through its instrumentalities and agencies entering into almost every branch of industry and commerce 13 there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power these cases can neither be enumerated nor fully illustrated the court must judge each case on its own facts and circumstances 23 as held by this court a right to equality guaranteed under article 14 of the constitution of india would also apply to a man who has no choice or rather no meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract however unfair unreasonable and unconscionable a clause in that contract or form or rules may be we find that the said observations rightly apply to the facts of the present case can it be said that the mighty union of india and an ordinary soldier who having fought for the country and retired from regular army seeking re employment in the territorial army have an equal bargaining power we are therefore of the considered view that the reliance placed on the said document would also be of no assistance to the case of the respondents 14 24 the present appeal is therefore allowed and the judgment and order dated 10th october 2018 passed by aft in o a no 149 of 2018 is quashed and set aside the question of law framed by aft in its order dated 31st october 2018 already stands answered in view of our finding given in para 21 25 the respondents herein are directed to grant disability pension to the appellant in accordance with the rules and regulations as are applicable to the members of the territorial army with effect from 1st january 2012 the respondents are directed to clear arrears from 1st january 2012 within a period of three months from the date of this judgment with interest at the rate of 9 per annum 26 the appeal is allowed in the above terms all pending applications shall stand disposed of no order as to costs j l nageswara rao j b r gavai new delhi december 17 2021 15 2567 2010_c a no 004353 004353 2010 the state of madhya pradesh sal government of madhya pradesh appellant1 raipur the state of madhya pradesh 2005 02 17 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 consultants v state 4353 of 2010 builders v delhi 4353 of 2010 limited v national builders v dda ongc v western builders v dda builders v dda builders v dda 4353 of 2010 builders v dda builders v dda ongc v western builders v dda builders v dda builders v dda 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 4353 of 2010 civil appeal no 4353 of 2010 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4353 of 2010 state of chhattisgarh anr appellants versus m s sal udyog private limited respondent j u d g m e n t hima kohli j 1 the appellant state of chhattisgarh is aggrieved by a common judgment dated 21st october 2009 passed by the chhattisgarh high court disposing of two appeals one preferred by the appellant1 and the other preferred by the respondent m s sal udyog private limited2 whereby the order dated 14th march 2006 passed by the learned district judge raipur in a petition filed by the appellant under section 34 of the arbitration and conciliation act 19963 has been partially modified and the interest awarded in favour of the respondent from the date of the 1 appeal no 22 of 2006 2 m a no 727 of 2006 3 for short the 1996 act page 1 of 21 civil appeal no 4353 of 2010 notice i e 6th december 2009 till realisation has been reduced from 18 per cent per annum to 9 per cent per annum at the same time the appeal preferred by the respondent company came to be dismissed 2 in brief the relevant facts of the case are that on 30th august 1979 the state of madhya pradesh had entered into an agreement with the respondent company for supply of 10 000 tonnes of sal seeds per annum for a period of 12 years in the year 1987 faced with loss of revenue government of madhya pradesh decided to annul all agreements relating to forest produce and enacted a legislation4 however the said act was notified after a decade on 1st january 1997 in the absence of any notification of the said enactment the agreement between the state of madhya pradesh and the respondent company was renewed on 30th april 1992 and was valid till 29th april 2004 under the renewed agreement the state of madhya pradesh agreed to supply 10 000 tonnes of sal seeds to the respondent company when the act was finally notified in the year 1996 by virtue of section 5a state of madhya pradesh terminated the agreement dated 30th april 1992 on 21st december 1998 aggrieved by the said termination the respondent company issued a notice dated 6th december 1999 invoking arbitration 4 m p van upaj ke kararon ka punarikshan adhiniyam no 32 of 1987 dated nil page 2 of 21 civil appeal no 4353 of 2010 clause no 23 in the agreement and raised certain disputes including a claim for refund of a sum of rs 1 72 17 613 rupees one crore seventy two lakhs seventeen thousand six hundred and thirteen only on the ground that the said amount had been paid in excess to the state of madhya pradesh for the supply of sal seeds during the period between 1981 82 to 31st december 1998 3 for the sake of completeness it may be noted that the respondent company had filed an application under section 11 6 of the 1996 act before the jabalpur bench of the madhya pradesh high court praying inter alia for appointment of an arbitrator during the pendency of the said application the madhya pradesh re organisation act 2000 came into force resultantly the application moved by the respondent company was transferred to the high court of chhattisgarh at bilaspur with the consent of the parties an order dated 21st march 2002 was passed in the said proceeding appointing a sole arbitrator who was subsequently replaced by another arbitrator 4 vide arbitral award dated 17 02 2005 the claim of the respondent company was allowed and a sum of rs 7 43 46 772 rupees seven crores forty three lakhs forty six thousand seven hundred seventy two only was awarded in its favour which included interest at the rate of 18 page 3 of 21 civil appeal no 4353 of 2010 per cent per annum upto february 2005 along with future interest at the rate of 18 per cent per annum payable with effect from 1st march 2005 5 aggrieved by the aforesaid award the appellant state filed a petition under section 34 of the 1996 act before the district judge raipur vide order dated 14th march 2006 the learned district judge declined to interfere with the award except for modifying the same to the extent of the interest awarded in favour of the respondent company and making it payable from the date of the notice i e 6th december 1999 instead of from the date of the agreement till 31st december 1999 6 the appellant state assailed the order dated 14th march 2006 by preferring an appeal under section 37 of the 1996 act the respondent company also filed a cross appeal being aggrieved by the modification of the award and reduction of the period of interest awarded in its favour several pleas were taken by the appellant state in the appeal including the ground of non joinder of the state of madhya pradesh as a necessary party that the respondent company never claimed refund of the excess recovery throughout the tenure of both the agreements and that the respondent s claim was barred by limitation a plea of estoppel was also taken against the respondent company 7 in view of the order dated 30th april 2010 whereunder leave was granted in the present petition limited to the issue of disallowance of page 4 of 21 civil appeal no 4353 of 2010 supervision charges to the tune of rs 1 49 crores under the award which as per the appellant state was liable to be borne by the respondent company under the agreement this court does not propose to examine the other pleas taken by the appellant state in the present appeal 8 ms prerna singh learned counsel for the appellant state has contended that a perusal of the terms and conditions of the agreement make it apparent that the parties had agreed that the expenses incurred every year by the state government for supplying sal seeds to the respondent company would not only include the cost of collection purchase price paid to the growers and commission agents cost of storage and transportation but also include handling and supervision charges she pointed out that the said plea taken by the appellant state was duly noted by the learned arbitrator in para 18 but was erroneously turned down in para 19 of the award paras 18 and 19 of the award are extracted herein below for ready reference 18 the further submission of the defendant is that in clause 6 b of the agreement in respect of supervision expense it is mentioned and the provision also enjoins that the supervision expenses along with other expenses which are spent by the defendant would be recoverable in so far as the supervision expense is concerned that concerned that concerns will all those expenses with respect to collection of the sal seeds under the banner of the government and in these expenses there are certain expenses like godown rent the salary of the officers and the staffs the appointment of the different persons of the work in the department and their travelling allowance vehicle telephone furniture transport and all other expenses of the vehicle they are page 5 of 21 civil appeal no 4353 of 2010 all such proportionate expenses which cannot be shown under the head of the bill or the voucher under the head of sal seeds and therefore 10 supervision expenses are acceptable and recoverable 19 on the analysis of this issue there is a clear provision in the agreement that the purchase of the sal seeds shall be divided into two parts the first would be of royalty and the second part would be of the purchaser of sal seed and all those expenses until its delivery in which the collection expenses purchasing price handling and supervision expenses the agents commission transports would all be assembled after the examination of the price on both the ends the first end would be of royalty according to the industrial policy of the state government of madhya pradesh the meaning of royalty implies the meaning the price at the production site for the calculation the bazaar rate or the auction or the price received on tender the transport in wood matter the cutting expenses may be reduced in this was in the matter of royalty from the point of production and protection and until the arrangement for the sake of trading all in direct expenses are assembled so far as the second part is concerned from the point of collection of sal seeds until its delivery all expenses are assembled in order it to make more clear the first part has been shown which relates to the expenses relating to storing and the purchase price to the producers and other handling and supervision expenses in so far as the guidelines which have been issued by virtue of the notification of the state government dated 25 04 1981 in so far as in para 17 is concerned and particularly the guidelines which has been issued by madhya pradesh rajya vanopaj sangh it is apparent that the work of the supervisor has to be done by the agent committee and particularly the expenses to the clerk checher etc and all those other expenses which goes to the handling expenses and the commission and thus in so far as in the form of supervision expenses there is no basis to admit any indirect expense in this situation the amount which is shown in the account by the account experts are liable to be admitted for adjustments 9 learned counsel for the appellant state argued that the aforesaid patent illegality on the face of the award was highlighted in grounds j k of the appeal preferred under section 37 of the 1996 act and was noted in para 3 of the impugned judgment but the high court failed to return a finding it was canvassed that supervision charges have been clearly referred to in clause 6 b of the agreement and is the subject matter of a circular dated 27th july 1987 issued by the state page 6 of 21 civil appeal no 4353 of 2010 government levy of supervision charges had also been intimated to the respondent company at the time of seeking advance payment and it did not raise any objection to paying the same she adverted to the documents filed with the appeal and marked as annexure p2 colly which are specimen copies of the orders placed indicating the price of the sal seeds to be supplied by the state government and the amount required to be paid by the respondent company to state that the same specifically refer to supervision charges described as paryavekshan vyay in hindi it was thus submitted that the respondent company having failed to raise any objection regarding levy of supervision charges over the years and having paid the said amount without any demur till termination of the contract there was no reason for the learned sole arbitrator to have deducted supervision charges and directed refund thereof to the respondent company to buttress the argument that the plea of patent illegality is a permissible ground for reviewing a domestic award the ruling in delhi airport metro express pvt ltd v delhi metro rail corporation ltd 5 has been cited 10 per contra mr pranav malhotra learned counsel for the respondent company argued that the appellant state having failed to raise any objection relating to deduction of supervision charges in its 5 2021 scc online sc 695 page 7 of 21 civil appeal no 4353 of 2010 section 34 petition it must be assumed that it had waived its right to take any such plea in the section 37 petition filed in the high court and for that matter before this court he cited state of maharashtra v hindustan construction company limited 6 to substantiate such an objection 11 learned counsel for the appellant state relied on the judgment in lion engineering consultants v state of madhya pradesh and others 7 to meet the aforesaid objection raised by learned counsel for the respondent company that the appellant state did not take a specific ground in the section 34 petition on the aspect of refund of supervision charges she reiterated that the objection regarding supervision charges was taken by the appellant state before the learned sole arbitrator as also in the section 37 petition and ought to have been considered by the high court 12 we have carefully perused the records and given our thoughtful consideration to the submissions advanced by learned counsel for the parties 6 2010 4 scc 518 7 2018 16 scc 758 page 8 of 21 civil appeal no 4353 of 2010 13 the law on interference in matters of awards under the 1996 act has been circumscribed with the object of minimising interference by courts in arbitration matters one of the grounds on which an award may be set aside is patent illegality what would constitute patent illegality has been elaborated in associate builders v delhi development authority 8 where patent illegality that broadly falls under the head of public policy has been divided into three sub heads in the following words 42 in the 1996 act this principle is substituted by the patent illegality principle which in turn contains three subheads 42 1 a a contravention of the substantive law of india would result in the death knell of an arbitral award this must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature this again is really a contravention of section 28 1 a of the act which reads as under 28 rules applicable to substance of dispute 1 where the place of arbitration is situated in india a in an arbitration other than an international commercial arbitration the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in india 42 2 b a contravention of the arbitration act itself would be regarded as a patent illegality for example if an arbitrator gives no reasons for an award in contravention of section 31 3 of the act such award will be liable to be set aside 42 3 c equally the third subhead of patent illegality is really a contravention of section 28 3 of the arbitration act which reads as under 28 rules applicable to substance of dispute 1 2 3 in all cases the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction 8 2015 3 scc 49 page 9 of 21 civil appeal no 4353 of 2010 this last contravention must be understood with a caveat an arbitral tribunal must decide in accordance with the terms of the contract but if an arbitrator construes a term of the contract in a reasonable manner it will not mean that the award can be set aside on this ground construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do emphasis added 14 in ssangyong engineering and construction company limited v national highways authority of india nhai 9 speaking for the bench justice r f nariman has spelt out the contours of the limited scope of judicial interference in reviewing the arbitral awards under the 1996 act and observed thus 34 what is clear therefore is that the expression public policy of india whether contained in section 34 or in section 48 would now mean the fundamental policy of indian law as explained in paras 18 and 27 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 i e the fundamental policy of in dian law would be relegated to renusagar understanding of this ex pression this would necessarily mean that western geco ongc v western geco international ltd 2014 9 scc 263 2014 5 scc civ 12 expansion has been done away with in short western geco ongc v western geco international ltd 2014 9 scc 263 2014 5 scc civ 12 as explained in paras 28 and 29 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 would no longer obtain as under the guise of interfering with an award on the ground that the arbitrator has not adopted a ju dicial approach the court s intervention would be on the merits of the award which cannot be permitted post amendment however insofar as principles of natural justice are concerned as contained in sec tions 18 and 34 2 a iii of the 1996 act these continue to be grounds of challenge of an award as is contained in para 30 of asso ciate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 35 it is important to notice that the ground for interference insofar as it concerns interest of india has since been deleted and therefore no longer obtains equally the ground for interference on the basis that the award is in conflict with justice or morality is now to be under stood as a conflict with the most basic notions of morality or justice this again would be in line with paras 36 to 39 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 9 2019 15 scc 131 page 10 of 21 civil appeal no 4353 of 2010 204 as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground 36 thus it is clear that public policy of india is now constricted to mean firstly that a domestic award is contrary to the fundamental policy of indian law as understood in paras 18 and 27 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 or secondly that such award is against basic notions of justice or morality as understood in paras 36 to 39 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 explanation 2 to section 34 2 b ii and explanation 2 to section 48 2 b ii was added by the amendment act only so that western geco ongc v western geco international ltd 2014 9 scc 263 2014 5 scc civ 12 as understood in associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 and paras 28 and 29 in particular is now done away with 37 insofar as domestic awards made in india are concerned an additional ground is now available under sub section 2 a added by the amendment act 2015 to section 34 here there must be patent illegality appearing on the face of the award which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law in short what is not subsumed within the fundamental pol icy of indian law namely the contravention of a statute not linked to public policy or public interest cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality 38 secondly it is also made clear that reappreciation of evidence which is what an appellate court is permitted to do cannot be per mitted under the ground of patent illegality appearing on the face of the award 39 to elucidate para 42 1 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 namely a mere contravention of the substantive law of india by itself is no longer a ground available to set aside an arbitral award para 42 2 of asso ciate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 however would remain for if an arbitrator gives no reasons for an award and contravenes section 31 3 of the 1996 act that would certainly amount to a patent illegality on the face of the award 40 the change made in section 28 3 by the amendment act really follows what is stated in paras 42 3 to 45 in associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 namely that the construction of the terms of a contract is primarily for an arbitrator to decide unless the ar bitrator construes the contract in a manner that no fair minded or reasonable person would in short that the arbitrator s view is not even a possible view to take also if the arbitrator wan ders outside the contract and deals with matters not allotted to him he commits an error of jurisdiction this ground of challenge will now fall within the new ground added under sec tion 34 2 a 41 what is important to note is that a decision which is perverse as understood in paras 31 and 32 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 while no longer being a ground for challenge under public policy of in page 11 of 21 civil appeal no 4353 of 2010 dia would certainly amount to a patent illegality appearing on the face of the award thus a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent ille gality additionally a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties and therefore would also have to be charcterised as perverse emphasis added 15 in delhi airport metro express pvt ltd supra referring to the facets of patent illegality this court has held as under 26 patent illegality should be illegality which goes to the root of the matter in other words every error of law committed by the ar bitral tribunal would not fall within the expression patent illegality likewise erroneous application of law cannot be categorised as patent illegality in addition contravention of law not linked to pub lic policy or public interest is beyond the scope of the expression patent illegality what is prohibited is for courts to re appreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award as courts do not sit in appeal against the arbitral award the permissible grounds for interfer ence with a domestic award under section 34 2 a on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one or interprets a clause in the contract in such a manner which no fair minded or reasonable person would or if the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them an arbi tral award stating no reasons for its findings would make itself susceptible to challenge on this account the conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality also consideration of documents which are not supplied to the other party is a facet of perversity falling within the expression patent illegality 16 having regard to the aforesaid parameters we may proceed to examine the facts of the instant case as noted above this court is required to examine the singular issue as to whether any interference is called for in the award on the ground taken by the appellant state that the learned arbitrator page 12 of 21 civil appeal no 4353 of 2010 as also the high court has ignored the binding terms of the contract governing the parties relating to recovery of supervision charges from the respondent company and the circular dated 27th july 1987 issued by the state government on the same lines which as per the appellant state goes to the root of the matter 17 some of the relevant terms and conditions of the original agreement dated 30th august 1979 are extracted below for ready reference 6 the price payable by the purchaser for the sal seeds supplied under this agreement shall consist of a royalty at the rate of rs 312 50 rupees three hundred twelve and fifty paise only per tonne for the initial four years of this agreement and b all expenses incurred by the governor each year till the delivery of the sal seeds to the purchaser which shall include the cost of collection and or the purchase price paid to growers as well as handling supervision charges commission to agent cost of storage transportation etc 8 supply of sal seeds shall be made to the purchaser against advance payments as given below at the beginning of each working season not later than 1st april each year the conservator s of forests of the circle s mentioned in schedule a shall intimate to the purchaser the price payable as per clause 6 above the purchaser shall pay the same in the following manner i the amount of royalty as per clause 6 a shall be deposited initially not later than 30th april each year and 500 quintals of sal seeds through a crossed bank draft or a call deposit receipt in favour of the concerned divisional forest officer s this initial payment shall be replenished by the purchaser every week or immediately after delivery of the quantity paid for whichever is earlier provided that in case of a shortfall in the supply of sal seeds for any such payment the amount paid to the sal seeds not actually supplied shall be adjusted towards the subsequent payment ii advance payment on account of collection costs and or the purchase price as specified in clause 6 b above shall be made in cash simultaneously and separately for the quantity mentioned page 13 of 21 civil appeal no 4353 of 2010 above and as laid down above to such officer who may be authorized by the concerned dfo in this behalf 9 i the purchaser shall arrange to take delivery of the sal seeds at the collection centre s or godown s as decided by the dfo within 24 hours of its collection there and shall arrange to remove the sal seeds so deposited within 15 days of the delivery thereof ii if the purchaser fails to take delivery of the collected sal seeds or fails to remove the same within the period prescribed above then the purchaser shall pay to the governor supervision charges and godowns rent at the rate of five paise per quintal per day from the date of expiry of the period mentioned above iii if failure to take delivery of sal seeds continue beyond the prescribed period of 15 days the concerned divisional forest officer may in tis discretion refuse delivery of sal seeds to the purchaser and permit delivery to any other person or party in respect of a part or the whole quantity of such sal seeds to any other person or party and in such circumstances the purchaser shall be liable to pay the amount of loss as well as other expenses on supervision etc incurred by the governor and this sum shall be recoverable as arrears of land revenue 18 it is an admitted position that both the original agreement dated 30th august 1979 and the renewed agreement dated 30th april 1992 included a clause relating to levy of supervision charges most of the terms and conditions of the original agreement dated 30th august 1979 and the renewed agreement dated 30th april 1992 are materially the same clause 6 b of the agreement dated 30th august 1979 is identical to clause 5 b of the agreement dated 30th april 1992 the said clauses stipulate that expenses incurred by the state government towards supply of sal seeds were to include amongst others supervision charges clause 8 of the first agreement is identical to clause 7 of the second agreement which stipulates that supply of sal seeds to the respondent company would be against advance payment there is also a similarity between clause 9 ii of the page 14 of 21 civil appeal no 4353 of 2010 agreement dated 30th july 1979 and clause 8 ii of the agreement dated 30th april 1992 that require the respondent company to take delivery of the collected sal seeds within a stipulated time and prescribe that in case of failure to do so supervision charges and godown rent shall be payable at a fixed price of 0 05p five paise per quintal per day 19 circular dated 27th july 1987 issued by the government of madhya pradesh provides for the assessment of the actual collection expenditure of the sal seeds supplied from the year 1981 to 1986 and stipulates that 2 the imposition of 10 supervision charges on the amount calculated after deducting the actual expenditure adding the cost of sukhat illegible in the sal seeds in the expenditure and computation recovery of interest for the period from the date of supply order till the date of supply after the order of court in certain cases wherein stay orders were passed by high court supreme court have been recommended 20 the appellant state had taken a plea on the aspect of levy of supervision charges in ground j and k of the section 37 petition as follows page 15 of 21 civil appeal no 4353 of 2010 j for that the ld arbitrator failed to appreciate that general supervision charges which includes administrative expenses including salary telephone ta da pol and other expenses incurred on officers and staff of the department and therefore vide circular no 7 87 dated 27 07 87 the erstwhile state of madhya pradesh has fixed the general supervision charges as 10 of the price which do not require any assessment k that vide order dated 27 08 1999 of hon ble high court jabalpur in w p no 3177 99 in bastar oil mills case recovery of handling and supervision charges was fixed at 20 of the price which was subsequently fixed by the supreme court as rs 1500 per tonne vide order dated 17 01 2000 in slp c no 6 2000 state of m p vs bastar oil mills case that was about 60 of the price meaning thereby the terms of contract contains two types of supervision charges i e one is general handling and supervision charges and second is special supervision charges when there is delay in the taking of delivery of sal seed under clause 9 of the agreement and there was no dispute at all about the supervision charges charges under clause 6 at the rate of 10 of the price nor such dispute was ever raised by the respondent so the order directing refund of general handling and supervision charges collected is bad in law and is error apparent on the face of the record 21 though the aforesaid plea has been recorded in paras 3 and 5 of the impugned judgment as can be seen from the following it has remained un answered by the high court 3 learned arbitrator has also ignored circular of the erstwhile state government whereby general supervision charges was fixed by 10 of the price which did not require assessment learned arbitrator also not considered that high court of m p at jabalpur in w p no 3177 99 in bastar oil mill s case fixed the recovery towards handling and supervision charges at 20 of the price which was subsequently fixed by the hon ble supreme court at rs 1 500 per ton vide order dated 17 01 2000 by s l p civil no 6 2000 thus the impugned award whereby the state has been directed refund of general handling and supervision charges collected by the state is bad in law 4 5 the state was within its right to recover supervision charges under clause 6 at the rate of 10 of the price and there was no dispute raised by the purchaser in this regard and thus the award page 16 of 21 civil appeal no 4353 of 2010 directing refund of general handling and supervision charges collected by the state is contrary to law 22 on a conspectus of the facts of the case it remains undisputed that though the appellant state did raise an objection before the arbitral tribunal on the claim of the respondent company seeking deduction of supervision charges for which it relied on clause 6 b of the agreement and the circular dated 27th july 1987 to assert that recovery of supervision charges along with expenses was a part and parcel of the contract executed with the respondent company the said objection was turned down by the learned sole arbitrator by giving a complete go by to the terms and conditions of the agreement governing the parties and observing that there is no basis to admit any such indirect expenses the circular dated 27th july 1987 issued by the government of madhya pradesh that provides for imposition of 10 supervision charges on the amounts calculated towards the cost of the sal seeds in the expenditure incurred was also ignored pertinently the respondent company has not denied the fact that supervision charges were being levied by the appellant state and being paid by it without any demur as a part of the advance payment made on an annual basis right from the date the parties had entered into the first agreement i e from 30th august 1979 this fact is also borne out from the specimen copies of the orders filed by the appellant state with the appeal that amply demonstrate that the cost of the sal seeds required to be paid by the respondent company included supervision charges described as paryavekshan vyay in vernacular language it was page 17 of 21 civil appeal no 4353 of 2010 only after the appellant state had terminated the second contract on 21st december 1998 that the respondent company raised a dispute and for the first time claimed refund of the excess amount purportedly paid by it to the appellant state towards supervision charges incurred for supply of sal seeds in our opinion this is the patent illegality that is manifest on the face of the arbitral award inasmuch as the express terms and conditions of the agreement governing the parties as also the circular dated 27th july 1987 issued by the government of madhya pradesh have been completely ignored 23 we are afraid the plea of waiver taken against the appellant state on the ground that it did not raise such an objection in the grounds spelt out in the section 34 petition and is therefore estopped from taking the same in the appeal preferred under section 37 or before this court would also not be available to the respondent company having regard to the language used in section 34 2a of the 1996 act that empowers the court to set aside an award if it finds that the same is vitiated by patent illegality appearing on the face of the same once the appellant state had taken such a ground in the section 37 petition and it was duly noted in the impugned judgment the high court ought to have interfered by resorting to section 34 2a of the 1996 act a provision which would be equally available for application to an appealable order under section 37 as it is to a petition filed under section 34 of the 1996 act in other words the respondent company cannot be heard to state that page 18 of 21 civil appeal no 4353 of 2010 the grounds available for setting aside an award under sub section 2a of section 34 of the 1996 act could not have been invoked by the court on its own in exercise of the jurisdiction vested in it under section 37 of the 1996 act notably the expression used in the sub rule is the court finds that therefore it does not stand to reason that a provision that enables a court acting on its own in deciding a petition under section 34 for setting aside an award would not be available in an appeal preferred under section 37 of the 1996 act 24 reliance placed by learned counsel for the respondent company on the ruling in the case of hindustan construction company limited supra is found to be misplaced in the aforesaid case the court was required to examine whether in an appeal preferred under section 37 of the 1996 act against an order refusing to set aside an award permission could be granted to amend the memo of appeal to raise additional new grounds answering the said question it was held that though an application for setting aside the arbitral award under section 34 of the 1996 act had to be moved within the time prescribed in the statute it cannot be held that incorporation of additional grounds by way of amendment in the section 34 petition would amount to filing a fresh application in all situations and circumstances thereby barring any amendment however material or relevant it may be for the consideration of a court after expiry of the prescribed period of limitation in fact laying emphasis on the very expression the courts find that applied in section page 19 of 21 civil appeal no 4353 of 2010 34 2 b of the 1996 act it has been held that the said provision empowers the court to grant leave to amend the section 34 application if the circumstances of the case so warrant and it is required in the interest of justice this is what has been observed in the preceding paragraph with reference to section 34 2a of the 1996 act 25 to sum up existence of clause 6 b in the agreement governing the parties has not been disputed nor has the application of circular dated 27th july 1987 issued by the government of madhya pradesh regarding imposition of 10 supervision charges and adding the same to cost of the sal seeds after deducting the actual expenditure been questioned by the respondent company we are therefore of the view that failure on the part of the learned sole arbitrator to decide in accordance with the terms of the contract governing the parties would certainly attract the patent illegality ground as the said oversight amounts to gross contravention of section 28 3 of the 1996 act that enjoins the arbitral tribunal to take into account the terms of the contract while making an award the said patent illegality is not only apparent on the face of the award it goes to the very root of the matter and deserves interference accordingly the present appeal is partly allowed and the impugned award insofar as it has permitted deduction of supervision charges recovered from the respondent company by the appellant state as a part of the expenditure incurred by it while calculating the price of the sal seeds is quashed and set aside being in direct conflict with the terms of the page 20 of 21 civil appeal no 4353 of 2010 contract governing the parties and the relevant circular the impugned judgment dated 21st october 2009 is modified to the aforesaid extent 26 the present appeal is disposed of in the above terms while leaving the parties to bear their own costs cji n v ramana j surya kant j hima kohli new delhi november 08 2021 page 21 of 21 civil appeal no 4353 of 2010 reportable in the supreme court of india civil appellate jurisdiction civil appeal no 4353 of 2010 state of chhattisgarh anr appellants versus m s sal udyog private limited respondent j u d g m e n t hima kohli j 1 the appellant state of chhattisgarh is aggrieved by a common judgment dated 21st october 2009 passed by the chhattisgarh high court disposing of two appeals one preferred by the appellant1 and the other preferred by the respondent m s sal udyog private limited2 whereby the order dated 14th march 2006 passed by the learned district judge raipur in a petition filed by the appellant under section 34 of the arbitration and conciliation act 19963 has been partially modified and the interest awarded in favour of the respondent from the date of the 1 appeal no 22 of 2006 2 m a no 727 of 2006 3 for short the 1996 act page 1 of 21 civil appeal no 4353 of 2010 notice i e 6th december 2009 till realisation has been reduced from 18 per cent per annum to 9 per cent per annum at the same time the appeal preferred by the respondent company came to be dismissed 2 in brief the relevant facts of the case are that on 30th august 1979 the state of madhya pradesh had entered into an agreement with the respondent company for supply of 10 000 tonnes of sal seeds per annum for a period of 12 years in the year 1987 faced with loss of revenue government of madhya pradesh decided to annul all agreements relating to forest produce and enacted a legislation4 however the said act was notified after a decade on 1st january 1997 in the absence of any notification of the said enactment the agreement between the state of madhya pradesh and the respondent company was renewed on 30th april 1992 and was valid till 29th april 2004 under the renewed agreement the state of madhya pradesh agreed to supply 10 000 tonnes of sal seeds to the respondent company when the act was finally notified in the year 1996 by virtue of section 5a state of madhya pradesh terminated the agreement dated 30th april 1992 on 21st december 1998 aggrieved by the said termination the respondent company issued a notice dated 6th december 1999 invoking arbitration 4 m p van upaj ke kararon ka punarikshan adhiniyam no 32 of 1987 dated nil page 2 of 21 civil appeal no 4353 of 2010 clause no 23 in the agreement and raised certain disputes including a claim for refund of a sum of rs 1 72 17 613 rupees one crore seventy two lakhs seventeen thousand six hundred and thirteen only on the ground that the said amount had been paid in excess to the state of madhya pradesh for the supply of sal seeds during the period between 1981 82 to 31st december 1998 3 for the sake of completeness it may be noted that the respondent company had filed an application under section 11 6 of the 1996 act before the jabalpur bench of the madhya pradesh high court praying inter alia for appointment of an arbitrator during the pendency of the said application the madhya pradesh re organisation act 2000 came into force resultantly the application moved by the respondent company was transferred to the high court of chhattisgarh at bilaspur with the consent of the parties an order dated 21st march 2002 was passed in the said proceeding appointing a sole arbitrator who was subsequently replaced by another arbitrator 4 vide arbitral award dated 17 02 2005 the claim of the respondent company was allowed and a sum of rs 7 43 46 772 rupees seven crores forty three lakhs forty six thousand seven hundred seventy two only was awarded in its favour which included interest at the rate of 18 page 3 of 21 civil appeal no 4353 of 2010 per cent per annum upto february 2005 along with future interest at the rate of 18 per cent per annum payable with effect from 1st march 2005 5 aggrieved by the aforesaid award the appellant state filed a petition under section 34 of the 1996 act before the district judge raipur vide order dated 14th march 2006 the learned district judge declined to interfere with the award except for modifying the same to the extent of the interest awarded in favour of the respondent company and making it payable from the date of the notice i e 6th december 1999 instead of from the date of the agreement till 31st december 1999 6 the appellant state assailed the order dated 14th march 2006 by preferring an appeal under section 37 of the 1996 act the respondent company also filed a cross appeal being aggrieved by the modification of the award and reduction of the period of interest awarded in its favour several pleas were taken by the appellant state in the appeal including the ground of non joinder of the state of madhya pradesh as a necessary party that the respondent company never claimed refund of the excess recovery throughout the tenure of both the agreements and that the respondent s claim was barred by limitation a plea of estoppel was also taken against the respondent company 7 in view of the order dated 30th april 2010 whereunder leave was granted in the present petition limited to the issue of disallowance of page 4 of 21 civil appeal no 4353 of 2010 supervision charges to the tune of rs 1 49 crores under the award which as per the appellant state was liable to be borne by the respondent company under the agreement this court does not propose to examine the other pleas taken by the appellant state in the present appeal 8 ms prerna singh learned counsel for the appellant state has contended that a perusal of the terms and conditions of the agreement make it apparent that the parties had agreed that the expenses incurred every year by the state government for supplying sal seeds to the respondent company would not only include the cost of collection purchase price paid to the growers and commission agents cost of storage and transportation but also include handling and supervision charges she pointed out that the said plea taken by the appellant state was duly noted by the learned arbitrator in para 18 but was erroneously turned down in para 19 of the award paras 18 and 19 of the award are extracted herein below for ready reference 18 the further submission of the defendant is that in clause 6 b of the agreement in respect of supervision expense it is mentioned and the provision also enjoins that the supervision expenses along with other expenses which are spent by the defendant would be recoverable in so far as the supervision expense is concerned that concerned that concerns will all those expenses with respect to collection of the sal seeds under the banner of the government and in these expenses there are certain expenses like godown rent the salary of the officers and the staffs the appointment of the different persons of the work in the department and their travelling allowance vehicle telephone furniture transport and all other expenses of the vehicle they are page 5 of 21 civil appeal no 4353 of 2010 all such proportionate expenses which cannot be shown under the head of the bill or the voucher under the head of sal seeds and therefore 10 supervision expenses are acceptable and recoverable 19 on the analysis of this issue there is a clear provision in the agreement that the purchase of the sal seeds shall be divided into two parts the first would be of royalty and the second part would be of the purchaser of sal seed and all those expenses until its delivery in which the collection expenses purchasing price handling and supervision expenses the agents commission transports would all be assembled after the examination of the price on both the ends the first end would be of royalty according to the industrial policy of the state government of madhya pradesh the meaning of royalty implies the meaning the price at the production site for the calculation the bazaar rate or the auction or the price received on tender the transport in wood matter the cutting expenses may be reduced in this was in the matter of royalty from the point of production and protection and until the arrangement for the sake of trading all in direct expenses are assembled so far as the second part is concerned from the point of collection of sal seeds until its delivery all expenses are assembled in order it to make more clear the first part has been shown which relates to the expenses relating to storing and the purchase price to the producers and other handling and supervision expenses in so far as the guidelines which have been issued by virtue of the notification of the state government dated 25 04 1981 in so far as in para 17 is concerned and particularly the guidelines which has been issued by madhya pradesh rajya vanopaj sangh it is apparent that the work of the supervisor has to be done by the agent committee and particularly the expenses to the clerk checher etc and all those other expenses which goes to the handling expenses and the commission and thus in so far as in the form of supervision expenses there is no basis to admit any indirect expense in this situation the amount which is shown in the account by the account experts are liable to be admitted for adjustments 9 learned counsel for the appellant state argued that the aforesaid patent illegality on the face of the award was highlighted in grounds j k of the appeal preferred under section 37 of the 1996 act and was noted in para 3 of the impugned judgment but the high court failed to return a finding it was canvassed that supervision charges have been clearly referred to in clause 6 b of the agreement and is the subject matter of a circular dated 27th july 1987 issued by the state page 6 of 21 civil appeal no 4353 of 2010 government levy of supervision charges had also been intimated to the respondent company at the time of seeking advance payment and it did not raise any objection to paying the same she adverted to the documents filed with the appeal and marked as annexure p2 colly which are specimen copies of the orders placed indicating the price of the sal seeds to be supplied by the state government and the amount required to be paid by the respondent company to state that the same specifically refer to supervision charges described as paryavekshan vyay in hindi it was thus submitted that the respondent company having failed to raise any objection regarding levy of supervision charges over the years and having paid the said amount without any demur till termination of the contract there was no reason for the learned sole arbitrator to have deducted supervision charges and directed refund thereof to the respondent company to buttress the argument that the plea of patent illegality is a permissible ground for reviewing a domestic award the ruling in delhi airport metro express pvt ltd v delhi metro rail corporation ltd 5 has been cited 10 per contra mr pranav malhotra learned counsel for the respondent company argued that the appellant state having failed to raise any objection relating to deduction of supervision charges in its 5 2021 scc online sc 695 page 7 of 21 civil appeal no 4353 of 2010 section 34 petition it must be assumed that it had waived its right to take any such plea in the section 37 petition filed in the high court and for that matter before this court he cited state of maharashtra v hindustan construction company limited 6 to substantiate such an objection 11 learned counsel for the appellant state relied on the judgment in lion engineering consultants v state of madhya pradesh and others 7 to meet the aforesaid objection raised by learned counsel for the respondent company that the appellant state did not take a specific ground in the section 34 petition on the aspect of refund of supervision charges she reiterated that the objection regarding supervision charges was taken by the appellant state before the learned sole arbitrator as also in the section 37 petition and ought to have been considered by the high court 12 we have carefully perused the records and given our thoughtful consideration to the submissions advanced by learned counsel for the parties 6 2010 4 scc 518 7 2018 16 scc 758 page 8 of 21 civil appeal no 4353 of 2010 13 the law on interference in matters of awards under the 1996 act has been circumscribed with the object of minimising interference by courts in arbitration matters one of the grounds on which an award may be set aside is patent illegality what would constitute patent illegality has been elaborated in associate builders v delhi development authority 8 where patent illegality that broadly falls under the head of public policy has been divided into three sub heads in the following words 42 in the 1996 act this principle is substituted by the patent illegality principle which in turn contains three subheads 42 1 a a contravention of the substantive law of india would result in the death knell of an arbitral award this must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature this again is really a contravention of section 28 1 a of the act which reads as under 28 rules applicable to substance of dispute 1 where the place of arbitration is situated in india a in an arbitration other than an international commercial arbitration the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in india 42 2 b a contravention of the arbitration act itself would be regarded as a patent illegality for example if an arbitrator gives no reasons for an award in contravention of section 31 3 of the act such award will be liable to be set aside 42 3 c equally the third subhead of patent illegality is really a contravention of section 28 3 of the arbitration act which reads as under 28 rules applicable to substance of dispute 1 2 3 in all cases the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction 8 2015 3 scc 49 page 9 of 21 civil appeal no 4353 of 2010 this last contravention must be understood with a caveat an arbitral tribunal must decide in accordance with the terms of the contract but if an arbitrator construes a term of the contract in a reasonable manner it will not mean that the award can be set aside on this ground construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair minded or reasonable person could do emphasis added 14 in ssangyong engineering and construction company limited v national highways authority of india nhai 9 speaking for the bench justice r f nariman has spelt out the contours of the limited scope of judicial interference in reviewing the arbitral awards under the 1996 act and observed thus 34 what is clear therefore is that the expression public policy of india whether contained in section 34 or in section 48 would now mean the fundamental policy of indian law as explained in paras 18 and 27 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 i e the fundamental policy of in dian law would be relegated to renusagar understanding of this ex pression this would necessarily mean that western geco ongc v western geco international ltd 2014 9 scc 263 2014 5 scc civ 12 expansion has been done away with in short western geco ongc v western geco international ltd 2014 9 scc 263 2014 5 scc civ 12 as explained in paras 28 and 29 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 would no longer obtain as under the guise of interfering with an award on the ground that the arbitrator has not adopted a ju dicial approach the court s intervention would be on the merits of the award which cannot be permitted post amendment however insofar as principles of natural justice are concerned as contained in sec tions 18 and 34 2 a iii of the 1996 act these continue to be grounds of challenge of an award as is contained in para 30 of asso ciate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 35 it is important to notice that the ground for interference insofar as it concerns interest of india has since been deleted and therefore no longer obtains equally the ground for interference on the basis that the award is in conflict with justice or morality is now to be under stood as a conflict with the most basic notions of morality or justice this again would be in line with paras 36 to 39 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 9 2019 15 scc 131 page 10 of 21 civil appeal no 4353 of 2010 204 as it is only such arbitral awards that shock the conscience of the court that can be set aside on this ground 36 thus it is clear that public policy of india is now constricted to mean firstly that a domestic award is contrary to the fundamental policy of indian law as understood in paras 18 and 27 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 or secondly that such award is against basic notions of justice or morality as understood in paras 36 to 39 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 explanation 2 to section 34 2 b ii and explanation 2 to section 48 2 b ii was added by the amendment act only so that western geco ongc v western geco international ltd 2014 9 scc 263 2014 5 scc civ 12 as understood in associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 and paras 28 and 29 in particular is now done away with 37 insofar as domestic awards made in india are concerned an additional ground is now available under sub section 2 a added by the amendment act 2015 to section 34 here there must be patent illegality appearing on the face of the award which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law in short what is not subsumed within the fundamental pol icy of indian law namely the contravention of a statute not linked to public policy or public interest cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality 38 secondly it is also made clear that reappreciation of evidence which is what an appellate court is permitted to do cannot be per mitted under the ground of patent illegality appearing on the face of the award 39 to elucidate para 42 1 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 namely a mere contravention of the substantive law of india by itself is no longer a ground available to set aside an arbitral award para 42 2 of asso ciate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 however would remain for if an arbitrator gives no reasons for an award and contravenes section 31 3 of the 1996 act that would certainly amount to a patent illegality on the face of the award 40 the change made in section 28 3 by the amendment act really follows what is stated in paras 42 3 to 45 in associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 namely that the construction of the terms of a contract is primarily for an arbitrator to decide unless the ar bitrator construes the contract in a manner that no fair minded or reasonable person would in short that the arbitrator s view is not even a possible view to take also if the arbitrator wan ders outside the contract and deals with matters not allotted to him he commits an error of jurisdiction this ground of challenge will now fall within the new ground added under sec tion 34 2 a 41 what is important to note is that a decision which is perverse as understood in paras 31 and 32 of associate builders associate builders v dda 2015 3 scc 49 2015 2 scc civ 204 while no longer being a ground for challenge under public policy of in page 11 of 21 civil appeal no 4353 of 2010 dia would certainly amount to a patent illegality appearing on the face of the award thus a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent ille gality additionally a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties and therefore would also have to be charcterised as perverse emphasis added 15 in delhi airport metro express pvt ltd supra referring to the facets of patent illegality this court has held as under 26 patent illegality should be illegality which goes to the root of the matter in other words every error of law committed by the ar bitral tribunal would not fall within the expression patent illegality likewise erroneous application of law cannot be categorised as patent illegality in addition contravention of law not linked to pub lic policy or public interest is beyond the scope of the expression patent illegality what is prohibited is for courts to re appreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award as courts do not sit in appeal against the arbitral award the permissible grounds for interfer ence with a domestic award under section 34 2 a on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one or interprets a clause in the contract in such a manner which no fair minded or reasonable person would or if the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them an arbi tral award stating no reasons for its findings would make itself susceptible to challenge on this account the conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality also consideration of documents which are not supplied to the other party is a facet of perversity falling within the expression patent illegality 16 having regard to the aforesaid parameters we may proceed to examine the facts of the instant case as noted above this court is required to examine the singular issue as to whether any interference is called for in the award on the ground taken by the appellant state that the learned arbitrator page 12 of 21 civil appeal no 4353 of 2010 as also the high court has ignored the binding terms of the contract governing the parties relating to recovery of supervision charges from the respondent company and the circular dated 27th july 1987 issued by the state government on the same lines which as per the appellant state goes to the root of the matter 17 some of the relevant terms and conditions of the original agreement dated 30th august 1979 are extracted below for ready reference 6 the price payable by the purchaser for the sal seeds supplied under this agreement shall consist of a royalty at the rate of rs 312 50 rupees three hundred twelve and fifty paise only per tonne for the initial four years of this agreement and b all expenses incurred by the governor each year till the delivery of the sal seeds to the purchaser which shall include the cost of collection and or the purchase price paid to growers as well as handling supervision charges commission to agent cost of storage transportation etc 8 supply of sal seeds shall be made to the purchaser against advance payments as given below at the beginning of each working season not later than 1st april each year the conservator s of forests of the circle s mentioned in schedule a shall intimate to the purchaser the price payable as per clause 6 above the purchaser shall pay the same in the following manner i the amount of royalty as per clause 6 a shall be deposited initially not later than 30th april each year and 500 quintals of sal seeds through a crossed bank draft or a call deposit receipt in favour of the concerned divisional forest officer s this initial payment shall be replenished by the purchaser every week or immediately after delivery of the quantity paid for whichever is earlier provided that in case of a shortfall in the supply of sal seeds for any such payment the amount paid to the sal seeds not actually supplied shall be adjusted towards the subsequent payment ii advance payment on account of collection costs and or the purchase price as specified in clause 6 b above shall be made in cash simultaneously and separately for the quantity mentioned page 13 of 21 civil appeal no 4353 of 2010 above and as laid down above to such officer who may be authorized by the concerned dfo in this behalf 9 i the purchaser shall arrange to take delivery of the sal seeds at the collection centre s or godown s as decided by the dfo within 24 hours of its collection there and shall arrange to remove the sal seeds so deposited within 15 days of the delivery thereof ii if the purchaser fails to take delivery of the collected sal seeds or fails to remove the same within the period prescribed above then the purchaser shall pay to the governor supervision charges and godowns rent at the rate of five paise per quintal per day from the date of expiry of the period mentioned above iii if failure to take delivery of sal seeds continue beyond the prescribed period of 15 days the concerned divisional forest officer may in tis discretion refuse delivery of sal seeds to the purchaser and permit delivery to any other person or party in respect of a part or the whole quantity of such sal seeds to any other person or party and in such circumstances the purchaser shall be liable to pay the amount of loss as well as other expenses on supervision etc incurred by the governor and this sum shall be recoverable as arrears of land revenue 18 it is an admitted position that both the original agreement dated 30th august 1979 and the renewed agreement dated 30th april 1992 included a clause relating to levy of supervision charges most of the terms and conditions of the original agreement dated 30th august 1979 and the renewed agreement dated 30th april 1992 are materially the same clause 6 b of the agreement dated 30th august 1979 is identical to clause 5 b of the agreement dated 30th april 1992 the said clauses stipulate that expenses incurred by the state government towards supply of sal seeds were to include amongst others supervision charges clause 8 of the first agreement is identical to clause 7 of the second agreement which stipulates that supply of sal seeds to the respondent company would be against advance payment there is also a similarity between clause 9 ii of the page 14 of 21 civil appeal no 4353 of 2010 agreement dated 30th july 1979 and clause 8 ii of the agreement dated 30th april 1992 that require the respondent company to take delivery of the collected sal seeds within a stipulated time and prescribe that in case of failure to do so supervision charges and godown rent shall be payable at a fixed price of 0 05p five paise per quintal per day 19 circular dated 27th july 1987 issued by the government of madhya pradesh provides for the assessment of the actual collection expenditure of the sal seeds supplied from the year 1981 to 1986 and stipulates that 2 the imposition of 10 supervision charges on the amount calculated after deducting the actual expenditure adding the cost of sukhat illegible in the sal seeds in the expenditure and computation recovery of interest for the period from the date of supply order till the date of supply after the order of court in certain cases wherein stay orders were passed by high court supreme court have been recommended 20 the appellant state had taken a plea on the aspect of levy of supervision charges in ground j and k of the section 37 petition as follows page 15 of 21 civil appeal no 4353 of 2010 j for that the ld arbitrator failed to appreciate that general supervision charges which includes administrative expenses including salary telephone ta da pol and other expenses incurred on officers and staff of the department and therefore vide circular no 7 87 dated 27 07 87 the erstwhile state of madhya pradesh has fixed the general supervision charges as 10 of the price which do not require any assessment k that vide order dated 27 08 1999 of hon ble high court jabalpur in w p no 3177 99 in bastar oil mills case recovery of handling and supervision charges was fixed at 20 of the price which was subsequently fixed by the supreme court as rs 1500 per tonne vide order dated 17 01 2000 in slp c no 6 2000 state of m p vs bastar oil mills case that was about 60 of the price meaning thereby the terms of contract contains two types of supervision charges i e one is general handling and supervision charges and second is special supervision charges when there is delay in the taking of delivery of sal seed under clause 9 of the agreement and there was no dispute at all about the supervision charges charges under clause 6 at the rate of 10 of the price nor such dispute was ever raised by the respondent so the order directing refund of general handling and supervision charges collected is bad in law and is error apparent on the face of the record 21 though the aforesaid plea has been recorded in paras 3 and 5 of the impugned judgment as can be seen from the following it has remained un answered by the high court 3 learned arbitrator has also ignored circular of the erstwhile state government whereby general supervision charges was fixed by 10 of the price which did not require assessment learned arbitrator also not considered that high court of m p at jabalpur in w p no 3177 99 in bastar oil mill s case fixed the recovery towards handling and supervision charges at 20 of the price which was subsequently fixed by the hon ble supreme court at rs 1 500 per ton vide order dated 17 01 2000 by s l p civil no 6 2000 thus the impugned award whereby the state has been directed refund of general handling and supervision charges collected by the state is bad in law 4 5 the state was within its right to recover supervision charges under clause 6 at the rate of 10 of the price and there was no dispute raised by the purchaser in this regard and thus the award page 16 of 21 civil appeal no 4353 of 2010 directing refund of general handling and supervision charges collected by the state is contrary to law 22 on a conspectus of the facts of the case it remains undisputed that though the appellant state did raise an objection before the arbitral tribunal on the claim of the respondent company seeking deduction of supervision charges for which it relied on clause 6 b of the agreement and the circular dated 27th july 1987 to assert that recovery of supervision charges along with expenses was a part and parcel of the contract executed with the respondent company the said objection was turned down by the learned sole arbitrator by giving a complete go by to the terms and conditions of the agreement governing the parties and observing that there is no basis to admit any such indirect expenses the circular dated 27th july 1987 issued by the government of madhya pradesh that provides for imposition of 10 supervision charges on the amounts calculated towards the cost of the sal seeds in the expenditure incurred was also ignored pertinently the respondent company has not denied the fact that supervision charges were being levied by the appellant state and being paid by it without any demur as a part of the advance payment made on an annual basis right from the date the parties had entered into the first agreement i e from 30th august 1979 this fact is also borne out from the specimen copies of the orders filed by the appellant state with the appeal that amply demonstrate that the cost of the sal seeds required to be paid by the respondent company included supervision charges described as paryavekshan vyay in vernacular language it was page 17 of 21 civil appeal no 4353 of 2010 only after the appellant state had terminated the second contract on 21st december 1998 that the respondent company raised a dispute and for the first time claimed refund of the excess amount purportedly paid by it to the appellant state towards supervision charges incurred for supply of sal seeds in our opinion this is the patent illegality that is manifest on the face of the arbitral award inasmuch as the express terms and conditions of the agreement governing the parties as also the circular dated 27th july 1987 issued by the government of madhya pradesh have been completely ignored 23 we are afraid the plea of waiver taken against the appellant state on the ground that it did not raise such an objection in the grounds spelt out in the section 34 petition and is therefore estopped from taking the same in the appeal preferred under section 37 or before this court would also not be available to the respondent company having regard to the language used in section 34 2a of the 1996 act that empowers the court to set aside an award if it finds that the same is vitiated by patent illegality appearing on the face of the same once the appellant state had taken such a ground in the section 37 petition and it was duly noted in the impugned judgment the high court ought to have interfered by resorting to section 34 2a of the 1996 act a provision which would be equally available for application to an appealable order under section 37 as it is to a petition filed under section 34 of the 1996 act in other words the respondent company cannot be heard to state that page 18 of 21 civil appeal no 4353 of 2010 the grounds available for setting aside an award under sub section 2a of section 34 of the 1996 act could not have been invoked by the court on its own in exercise of the jurisdiction vested in it under section 37 of the 1996 act notably the expression used in the sub rule is the court finds that therefore it does not stand to reason that a provision that enables a court acting on its own in deciding a petition under section 34 for setting aside an award would not be available in an appeal preferred under section 37 of the 1996 act 24 reliance placed by learned counsel for the respondent company on the ruling in the case of hindustan construction company limited supra is found to be misplaced in the aforesaid case the court was required to examine whether in an appeal preferred under section 37 of the 1996 act against an order refusing to set aside an award permission could be granted to amend the memo of appeal to raise additional new grounds answering the said question it was held that though an application for setting aside the arbitral award under section 34 of the 1996 act had to be moved within the time prescribed in the statute it cannot be held that incorporation of additional grounds by way of amendment in the section 34 petition would amount to filing a fresh application in all situations and circumstances thereby barring any amendment however material or relevant it may be for the consideration of a court after expiry of the prescribed period of limitation in fact laying emphasis on the very expression the courts find that applied in section page 19 of 21 civil appeal no 4353 of 2010 34 2 b of the 1996 act it has been held that the said provision empowers the court to grant leave to amend the section 34 application if the circumstances of the case so warrant and it is required in the interest of justice this is what has been observed in the preceding paragraph with reference to section 34 2a of the 1996 act 25 to sum up existence of clause 6 b in the agreement governing the parties has not been disputed nor has the application of circular dated 27th july 1987 issued by the government of madhya pradesh regarding imposition of 10 supervision charges and adding the same to cost of the sal seeds after deducting the actual expenditure been questioned by the respondent company we are therefore of the view that failure on the part of the learned sole arbitrator to decide in accordance with the terms of the contract governing the parties would certainly attract the patent illegality ground as the said oversight amounts to gross contravention of section 28 3 of the 1996 act that enjoins the arbitral tribunal to take into account the terms of the contract while making an award the said patent illegality is not only apparent on the face of the award it goes to the very root of the matter and deserves interference accordingly the present appeal is partly allowed and the impugned award insofar as it has permitted deduction of supervision charges recovered from the respondent company by the appellant state as a part of the expenditure incurred by it while calculating the price of the sal seeds is quashed and set aside being in direct conflict with the terms of the page 20 of 21 civil appeal no 4353 of 2010 contract governing the parties and the relevant circular the impugned judgment dated 21st october 2009 is modified to the aforesaid extent 26 the present appeal is disposed of in the above terms while leaving the parties to bear their own costs cji n v ramana j surya kant j hima kohli new delhi november 08 2021 page 21 of 21 2645 2021_t c c no 000025 2021 court the high court contempt petition s a m khanwilkar appellant1 mat appeal 2020 07 29 1955 sc 425 gp no 09 2018 aman lohia vs kiran kaur lohia 19 09 2019 present none for petitioner respondent in person with ld counsel ms malvika rajkotia ld counsel for the respondent has filed an application under order 1 rule 10 and order 23 rule 1 a r w section 151 cpc to transpose the respondent be listed for consideration on 20 09 2019 at 1 00 pm emphasis supplied on 20 9 2019 when the matter was taken up the court recorded the following order 9 gp no 09 2018 aman lohia vs kiran kaur lohia 20 09 2019 present none for petitioner respondent in person with ld counsel ms malvika rajkotia arguments have been heard from 2 15 to 5 00 pm on applications one application under order 1 rule 10 and order 23 rule 1a r w section 151 cpc and other application under section 151 cpc have been filed by the ld counsel ld counsel for the respondent seeks time to file case law be listed for orders on 21 09 2019 sd swarna kanta sharma principal judge family court patiala house court new delhi 20 09 2019 r once again the court did not advert to the crucial aspects as to whether the application under consideration had been duly served upon the appellant much less notice relating to application under section 151 of the cpc filed by the respondent as also the subsequent application for transposition under order i rule 10 9 accordingly on 21 9 2019 the matter was posted for hearing before the family court when two separate orders came to be passed the first order was that despite knowledge about the pending proceedings the appellant had abandoned and 10 withdrawn from the case for which reason the respondent was entitled to be transposed as the petitioner in the guardianship petition and seek declaration that she was the guardian of the minor child it is stated that no notice of the transposition application was ever served on the appellant nor was he given notice regarding hearing of the said application before the court despite the fact that his counsel had been discharged from the case and the appellant was not represented by any other counsel on the same day the family court then proceeded to decide the main guardianship petition g p no 09 2018 after recording the material facts pointed out by the respondent it proceeded to hold that giving guardianship of the minor child who was only two and half years of age to the appellant was not advisable by virtue of his conduct he appellant had disentitled himself to be declared as guardian of the minor child after recording this finding the court proceeded to hold that in the paramount interest and welfare of the child the respondent mother needs to be declared as the sole exclusive and absolute guardian and custodian of the minor child 11 10 feeling aggrieved the appellant approached the high court by way of mat appeal f c no 85 2020 to challenge the aforesaid judgment and orders passed by the family court dated 21 9 2019 the appellant had raised diverse grounds to challenge the correctness of the view expressed by the family court including the manner in which the impugned orders were passed without giving fair opportunity to him and also about failure to follow mandatory procedure the impugned orders were passed by the family court without following due process of law and in breach of principles of natural justice in the matters of discharging his advocate and not issuing notice to the appellant even thereafter calling upon him to make alternative arrangements and moreso in allowing transposition of the respondent as petitioner and appellant as respondent and on the same day to declare her respondent as the sole exclusive and absolute guardian and custodian of the minor child 11 according to the appellant the judgment under appeal is not a judgment in terms of section 17 of the 1984 act that the 12 record of the case makes it amply clear that the family court failed to adhere to the established practice and procedure to be followed for adjudicating the disputes brought before it under the 1984 act that is evident from the order dated 13 9 2019 which records that notice be issued to the appellant herein and his counsel returnable on 16 9 2019 at 2 00 p m however on 16 9 2019 when the counsel appearing for the appellant mr rajat bhalla informed the court that he intended to take discharge and his application came to be allowed by the court no notice thereof was given to the appellant the order clearly records that dasti report regarding service of notice sent to the appellant was still awaited as a matter of fact on an earlier date the court had posted the matter for 30 10 2019 which date stood unilaterally cancelled by the family court in terms of order dated 16 9 2019 again without notice to the appellant further no affidavit of service was filed on record indicating the factum of service of notice on the appellant regarding the application under section 151 of the cpc filed by the respondent praying that she be declared as the sole exclusive and absolute guardian and custodian of the minor child despite that the court proceeded 13 with the matter on 19 9 2019 but before that date another application came to be filed by the respondent for transposing her as petitioner in the guardianship petition and appellant as respondent therein for the reasons mentioned in the application dated 18 9 2019 even copy of this application was not served on the appellant and despite that the family court proceeded therewith on 19 9 2019 without recording the fact as to whether the appellant was duly served with the earlier application or the earlier notice and yet chose to list the matter on the next day i e 20 9 2019 for consideration at 1 00 p m in short it is urged that the record plainly speaks about the manner in which the family court proceeded to pass the orders on 21 9 2019 with tearing hurry at the behest of the respondent whilst completely disregarding the mandatory procedure prescribed in the 1984 act read with the provisions of the cpc it was a clear case of infraction of principles of natural justice it is urged that it was not open to the family court to assume the factum of appellant having abandoned the proceedings unless he had appeared in court to say so or had informed the court in writing in that regard it is a question of fact and not a matter for deducing 14 legal presumption assuming that the court was convinced that the appellant was not pursuing the proceedings diligently or was creating obstruction in any manner the court at best could have dismissed the petition filed by the appellant on the ground of default or non prosecution under order ix rule 8 of the cpc in any case since the court chose to proceed with the transposition application ex parte against the appellant it should have clearly recorded that fact in its order and the reasons in support thereof besides after transposition of respondent as the petitioner in the guardianship petition g p no 09 2018 filed by the appellant and appellant as respondent therein it was imperative for the court to issue notice to the appellant to file his response in the proceedings as a matter of fact in guardianship proceedings the question of transposition does not arise for it is a substantive petition founded on cause of action personal to the person claiming to be guardian of his own ward moreover admittedly the respondent had never filed written statement to oppose the guardianship petition filed by the appellant much less reply to the application s for amendment of petition which could be treated by the court as guardianship petition filed by the 15 respondent herself in either case the court was obliged to issue notice to the appellant and only after service of notice could have proceeded in the matter if the respondent had any difficulty in effecting service of notice on the appellant the court could have allowed the respondent to serve the appellant through substituted service under order v of the cpc even that attempt was not made by the court instead it presumed that the appellant had abandoned the proceedings that approach is manifestly wrong hence the procedure followed by the family court until culmination of proceedings into judgment and orders dated 21 9 2019 is vitiated in law 12 the appellant is relying on dictum in mamata mayee sahoo vs abinash sahoo9 wherein the orissa high court took note of the procedural compliances to be made by the family court according to the appellant the decision relied upon by the family court of delhi high court in someshwar dayal vs anupama dayal10 was inapposite it was clearly distinguishable as there was nothing on record to indicate that the petitioner had expressly abandoned the proceedings or after 9 2015 scc online ori 167 10 2016 scc online del 4585 16 due opportunity had committed default in any manner the present case indeed was one of counsel appearing for the appellant having withdrawn from the case that does not mean that the appellant had abandoned the proceedings it is urged that the application filed by the respondent under section 151 of the cpc in law could not be regarded as a substantive petition required to be filed under section 25 of the 1890 act for a declaration appointment as guardian in any case the family court was under obligation to insist for the written statement to be filed by the respondent including reply to the applications filed by the appellant under order vi rule 17 of the cpc and then to frame issues on which the matter could proceed not only that the family court was obliged to record evidence before adjudicating the matters in issue and pronounce final declaration and judgment under section 17 of the 1984 act which obliges the family court to record a concise statement of the case the point for determination the decision thereon and the reasons for such decision the family court in the guise of entertaining application under section 151 of the cpc cannot assume the plenary power of a constitutional court but is obliged to decide the case as per the mandatory procedure prescribed in the 17 concerned act and or the cpc as the case may be for conduct of trial and inquiry strikingly the family court after pronouncing the impugned judgment and orders on 21 9 2019 upon an application filed by the respondent under section 151 of the cpc despite becoming functus officio issued directions vide order dated 16 10 2019 to the effect that the custody of the minor child be handed over to the respondent mother within specified time it was matter of record that the child was away from the jurisdiction of the family court when the relevant orders came to be passed in law therefore the family court could not have exercised jurisdiction as noted in ruchi majoo vs sanjeev majoo11 13 the appellant asserts that he is a loving caring concerned and affectionate father and the minor cannot be denied of all that merely because of events that unfolded during the pendency of habeas corpus petition s or contempt petition s before the high court the central concern of the court should be the paramount welfare and interest of the minor child the approach of the court in that regard ought to be child centric the issue 11 2011 6 scc 479 18 cannot be answered on the basis of claims and counter claims of the warring parents as to deny the child of parentage of her father because of other acts of commission and omission of the father to do so would in effect be punishing the minor child and depriving her of the love and affection of her father that must be eschewed the family court in such proceedings is obliged to record a clear finding about the unfitness or otherwise of the father to be a guardian that must be in the context of the child care and not other matters or worldly activities of father as a matter of fact contends the learned counsel the most appropriate course would be to follow the joint shared parenting plan in which the child would interact with both the parents in equal measure further the paramount interest and welfare of the child is not limited to being connected with father and mother but even other family members from both sides for her well being and holistic growth that is vital in the context of child psychology and upbringing as a matter of fact during counselling the respondent had accepted the fact that because she is a working woman the child can remain with the grandparents who were staying only few houses away during 19 the day time on working days the appellant had highlighted several aspects about the unfitness of the respondent to groom the child or devote enough time and attention herself 14 reliance has been placed on the dictum in savitha seetharam vs rajiv vijayasarathy rathnam12 jk vs ns13 tushar vishnu ubale vs archna tushar ubale14 law commission of india report no 25715 and child access custody guidelines alongwith parenting plan16 according to the appellant joint custody or shared parenting would be in the best interest and welfare of the child that would ensure that every decision taken regarding the child is for fulfilment of her basic rights and needs identity social well being and physical emotional and intellectual development reliance is placed on decision in lahari sakhamuri vs sobhan kodali17 ashish ranjan vs anupma tandon anr 18 tejaswini gaud ors 12 2020 4 akr 372 paragraphs 9 11 13 23 and 32 13 2019 scc online del 9085 paragraphs 89 and 95 97 14 air 2016 bom 88 paragraphs 15 and 17 20 15 law commission of india report no 257 reforms in guardianship and custody laws in india may 2015 16 child access custody guidelines alongwith parenting plan by child rights foundation ngo mumbai 2014 17 2019 7 scc 311 18 2010 14 scc 274 20 vs shekhar jagdish prasad tewari ors 19 and vivek singh vs romani singh20 15 it is urged that the respondent for reasons best known to her precipitated the matter despite the pre emptory directions given by this court in connected proceedings between the parties by taking u s nationality of the minor child and also obtained a consular report of birth abroad status crba in december 2019 from the u s embassy the respondent herself is a u s citizen therefore the appellant apprehends that the respondent has intention to remove the child away from the jurisdiction of the courts in india and permanently deny access to him and his family members since the respondent has secured crba status on the basis of declaration given by the family court vide impugned judgment and orders upon setting aside of that order all consequential claims benefits accrued or derived by the respondent on that basis must also become non est in the eyes of law 16 as a matter of fact in the indian context neither provisions of the 1984 act nor the 1890 act envisage a declaration in favour 19 2019 7 scc 42 20 2017 3 scc 231 21 of the parent to be the sole exclusive and absolute guardian and custodian of the minor child such declaration has been intentionally obtained by the respondent from the family court to serve her ulterior purpose the appellant has taken us through other points to buttress the argument that the respondent is not a fit person for parental custody or guardianship of the minor child the appellant has also relied on the observations in nithya anand raghavan vs state nct of delhi anr 21 prateek gupta vs shilpi gupta ors 22 kanika goel vs state of delhi anr 23 and abc vs state nct of delhi 24 according to the appellant the father being a natural guardian under the hindu laws is entitled for declaration of guardianship unless it is found in a given case that he is unfit in the context of parenting of the minor child or would act against the interest and welfare of the minor child as the case may be according to the appellant the father is a natural guardian irrespective of the mother s custody the guardianship of the father cannot be divested in law to buttress this 21 2017 8 scc 454 22 2018 2 scc 309 23 2018 9 scc 578 24 2015 10 scc 1 22 contention reliance is placed on roxann sharma vs arun sharma25 it is contended that unless the father is declared as unfit the relief of declaring him to be the guardian cannot be declined the fact that the appellant had taken the child away from the jurisdiction of the family court does not mean that he was a kidnapper of the child as he continues to be a natural guardian 17 it is also urged that interparental child removal is not a statutory offence reliance has been placed on the hague convention on the civil aspects of international child abduction dated 25 10 198026 to contend that issue of accession to the 1980 hague convention is still under consideration of the government of india and interparental child abduction has not yet found any recognition in indian law 18 according to the appellant the impugned judgment and orders cannot be sustained on any parameter and need to be set aside and instead the guardianship petition g p no 09 2018 filed by the appellant be made absolute in favour of the appellant 25 2015 8 scc 318 26 for short the 1980 hague convention 23 19 the respondent has stoutly refuted the stand taken by the appellant it is urged that the family court had no other option but to proceed on the basis that the appellant had abandoned the proceedings before that court merely because there is no express statement forthcoming from the appellant in the proceedings before the family court does not mean that he had not abandoned the proceedings before the family court by his conduct and other circumstances established from the record and so noted even by the high court the appellant admittedly filed proceedings in the uae court claiming himself to have converted to islam it is only when it became impossible for him to continue with those proceedings and his arrest became inevitable he had no other option but to withdraw those proceedings and submit to the jurisdiction of this court such a litigant cannot be shown any indulgence nor would deserve any sympathy the appellant is required to discharge high burden of estoppel in raising procedural deficiencies in the decision making process by the family court in any case the facts and the record would reveal that the appellant had full notice about the progress of the matter and the applications filed by the respondent as is evident from his email trail it is urged that the 24 appellant because of his conduct has denied himself of raising technical pleas about procedural lapses committed by the family court the procedural justice is always subservient to the substantive justice it is urged that hyper technical argument of the appellant regarding non compliance of procedure by the family court needs to be negatived in light of the exposition in sangram singh vs electional tribunal kotah anr 27 state of punjab anr vs shamlal murari anr 28 and rosy jacob vs jacob a chakramakkal29 20 in the alternative it is submitted that there are strong reasons why the order passed by the family court needs to be upheld for the appellant not only converted himself to islam but also indulged in misadventure by abducting minor child and taking her away outside india and obtained dominica citizenship and dominica passport for the minor the mother being the natural guardian and the appellant having misconducted rendered himself to be unfit as guardian the family court justly recognised the respondent as the sole guardian of the minor 27 air 1955 sc 425 paragraph 16 28 1976 1 scc 719 paragraph 8 29 1973 1 scc 840 25 21 as regards the u s citizenship taken by the respondent of the minor child and u s passport the respondent through counsel submits that she would surrender the same that was taken by the respondent in good faith and for the welfare of the minor child it is urged that the family court has done independent evaluation of the relevant factual matrix before concluding that giving guardianship to the appellant father would not be advisable and instead the respondent was the fit person to be appointed as sole exclusive and absolute guardian and custodian of the minor child that can be discerned from the discussion in paragraphs 15 17 to 28 of the impugned judgment it is urged that the minor child is not comfortable while in company of the appellant or his family members whereas she is being properly looked after by the respondent and her family members even though the respondent is a working woman being a professional she is conscious of her obligation towards the minor child and gives her best for the welfare and upbringing of her daughter the present arrangement of visitation permitted by this court in the connected proceedings
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InĀ [52]:
# 6. Example phrase queries
from IPython.display import display, HTML
print('\n=== Example Phrase Queries ===')
phrases = ["right to counsel", "due process"]
for ph in phrases:
res_ph = phrase_query(index, docs_by_id, ph)
print('\n' + '='*100)
print(f"Phrase: \"{ph}\" -> Matches: {len(res_ph)}")
print('-'*100)
if not res_ph:
print('No matches found for this phrase.')
for doc_id, start_pos, sent_idx, para_idx, highlighted in res_ph:
print(f"Doc: {doc_id} | sentence_index={sent_idx} | paragraph_index={para_idx} | token_start_pos={start_pos}")
# display highlighted snippet as HTML for better readability in notebook
display(HTML(f"<div style='font-family: monospace; background:#1f1f1f; color:#e6e6e6; padding:10px; border-radius:6px; margin:6px 0;'>{highlighted}</div>"))
print()
print('='*100)
=== Example Phrase Queries === ==================================================================================================== Phrase: "right to counsel" -> Matches: 0 ---------------------------------------------------------------------------------------------------- No matches found for this phrase. ==================================================================================================== ==================================================================================================== Phrase: "due process" -> Matches: 1 ---------------------------------------------------------------------------------------------------- Doc: indian_supreme_court_judgments.csv | sentence_index=23991 | paragraph_index=0 | token_start_pos=776718
were passed by the family court without following due process of law and in breach of principles of
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